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Treaty - Making Power 

Slavery and the Race 
Problem in the South 

By 

William H. Fleming 




1920 
The Stratford Company, 'Publishers 

Boston, Massachusetts 






Copyright 1920 

The STRATFORD CO., Publishers 

Boston, Mass. 



The Alpine Press, Boston, Mass., U. S. A. 



JUL 12 1920 



CI.A570664 



Contents 

PAGE 

The Treaty-Making Power of the President 

and Senate 1 

Slavery and the Race Problem in the South 35 



ADDRESS OF WILLIAM H. FLEMING 

Before the Georgia Bar Association at 

Warm Springs, Ga., on June 3, 1909. 



The Treaty-Making Power op the President and 

Senate: How Affected by the Powers 

Delegated to Congress, and by the 

Powers Reserved to the States. 

(From The Augusta Chronicle, Sunday, June 6, 1909.) 
Following is the address of Hon. William H. Flem- 
ing, at Warm Springs, before the annual meeting of 
the Georgia Bar Association: 

Mr. President and Gentlemen: 

By the highest authority in the land we have been 
cordially assured that the South is now a fully re- 
stored member of the Union and is to be recognized 
and treated as such. That being true, there can be 
no impropriety in a Southern man before a Southern 
Bar Association discussing a national question. 

The subject of our discussion is: 

The Treaty-Making Power of the President and 
Senate; How Affected by the Powers Delegated to 
Congress, and by the Powers Reserved to the States. 

The recent crisis which almost precipitated inter- 
national estrangement between the United States and 
Japan, by reason of threatened legislation by the State 

[1] 



THE TREATY - MAKING POWER 

* 

of California discriminating against Japanese chil- 
dren in the public schools, in contravention of their 
alleged rights under an existing treaty, imparts a 
living, practical interest to our discussion, which 
might otherwise stand exposed to the criticism of 
being merely academic. 

A law connotes a sovereign and subjects ; a treaty 
connotes two sovereigns. One is intra-national ; the 
other is inter-national. Violation of a law involves 
disobedience, with the consequent penalties pre- 
scribed. Violation of a treaty involves breach of 
faith, with such consequent protest, retaliation, or 
war, as the aggrieved nation may be willing and able 
to make. 

As between the nations themselves, the stipulations 
of a treaty rest in contract. But as between each na- 
tion and its own subjects, those stipulations have the 
status of positive law throughout its whole territory 
— unless that status be modified by the political struc- 
ture of the government. Hence the pertinency of in- 
quiring into our fundamental law on this subject. 

Historical Development of Treaty-Provisions in 

Constitution. 

When our Revolutionary fathers met in the Federal 
Convention of 1787 to frame our Constitution, there 
was, in the midst of great diversity of opinion on 
many other matters, entire unanimity on lodging the 
treaty-making power in some department of the na- 

[2] 



THE TREATY - MAKING POWER 

tional government to the complete exclusion of the 
states. 

That proposition was unanimously agreed to as 
early as May 31st, the second business day after the 
Committee of the Whole began its work. It was af- 
firmed in the regular convention without dissent on 
August 25th and reaffirmed without dissent on Sep- 
tember 6th. 

And when, after weeks and months of arguments, 
amendments, and re-amendments, the heterogeneous 
mass of political material had been combined into sys- 
tem and wrought into shape by the Committee of De- 
tail, and the almost finished instrument came at last 
from the hands of the ' ' Committee of Stile & Arrange- 
ment" (as Mr. Madison writes it) and received the 
final approval of the convention, it contained the fol- 
lowing provisions on the subject of treaties: 

No state shall " enter into any treaty, alliance or 
confederation." Art. 1, Sec. 10, Par. 1. 

"He (the President) shall have power by and 
with the advice and consent of the Senate to make 
treaties, provided two-thirds of the senators present 
concur." Art. 2, Sec. 2, Par. 2. 

"This Constitution and the laws of the United 
States which shall be made in pursuance thereof, and 
all treaties made, or which shall be made, under the 
authority of the United States shall be the supreme 
law of the land." Art. 6, Sec. 2. 

Indeed the looser Articles of Confederation which 
became operative March 1, 1781, contain substan- 

[3] 



THE TREATY - MAKING POWER 

tially similar provisions against state action in the 
making of treaties. 

But although there was such oneness of opinion 
in regard to vesting the treat y-niaking power in the 
Federal government as against the states — resulting 
from manifest political propriety and necessity — yet 
there was serious difference of opinion as to just what 
department of the Federal government should be in- 
trusted with this high prerogative of sovereignty. 

The draft of the Constitution as it came to the 
regular convention from the Committee of the Whole 
on August 6th lodged the treaty-making power ex- 
clusively in the Senate acting by majority vote, and 
there it remained until September 7th, ten days before 
adjournment, when the following substitute provision 
was adopted: 

"The President by and with the advice and consent 
of the Senate shall have power to make treaties — but 
no treaty shall be made without the consent of two- 
thirds of the members present." 

This verbiage was condensed and improved by the 
Committee on Style and Arrangement to read as it 
now stands: 

"He shall have power by and with the advice 
and consent of the Senate to make treaties, provided 
two-thirds of the senators present concur." 

The requirement of a two-thirds vote was doubtless 
based upon the same considerations of public policy 
and local jealousy which necessitated the provision in 

[4] 



THE TREATY - MAKING POWER 

the Articles of Confederation that the votes of nine 
states should be required to ratify a treaty. 

Judging from the debates in the convention, the 
exclusion of the House from participation in treaty- 
making was not based on any principle of division of 
powers, but arose solely from the advantage of hav- 
ing a comparatively small body to deal with the class 
of subjects that often required secrecy for successful 
negotiation. 

Had the fathers understood the mysteries of 
telepathy, and foreseen how easy it would be for the 
modern newspaper reporter to possess himself, by 
some subtle method of thought-transference, of all 
the secrets of executive sessions of the Senate, no 
doubt they would have attached less importance to 
the plea of necessity for excluding the more numerous 
branch of the legislature from these supposedly secre' 
sessions. 

In these secret executive sessions, the Vice-Presi- 
dent retains the chair, thus establishing, as was sup- 
posed by some, a closer nexus between the President 
and the Senate. 

In the convention on September 7th Elbridge 
Gerry opposed the provision making the Vice-Presi- 
dent ex-officio president of the Senate. He contended 
that the close intimacy that must subsist between 
the President and the Vice-President makes it ' ' abso- 
lutely improper. " But on that issue, he was easily 
out-voted — the logic of his contention being more 
than met by the wit of Gouverneur Morris, who ob- 

[5] 



THE TREATY - MAKING POWER 

served, "The Vice-President then will be the first 
heir-apparent that ever loved his father." 

Having thus briefly traced the historical setting of 
the constitutional provisions touching the treaty- 
making power, let us now inquire to what extent that 
power is affected by other powers delegated to 
Congress. 

Treaty-Power as Affected by Powers Delegated 

to Congress. 

It will be observed that the supreme law of the land 
is declared to be: First, the Constitution; second, 
the Statutes, and third, the Treaties. Whether or 
not there be any significance inter sese in this order 
of priority, of course the Constitution must, for other 
controlling reasons, outrank the treaties as well as 
the statutes. Valid treaties and valid statutes are 
each supreme in their own sphere, provided those 
spheres do not overlap. But suppose there be a con- 
flict between a statute and a treaty, which must yield ? 

Only two departments of the government, the Presi- 
dent and the Senate (by two-thirds vote), participate 
in the making of a treaty. Three departments, the 
House, the Senate and the President, participate in 
the making of a statute, except in case of a veto, when 
two-thirds of the House and Senate are required. 

The House is necessary to every statute ; the Presi- 
dent is not. The President is necessary to every 
treaty; the House is not. This fact of the partici- 

[6] 



THE TREATY - MAKING POWER 

pation of the House, the great popular branch of the 
government, would of itself seem sufficient to give 
controlling effect to a statute as against a treaty. 

In this connection, there is another consideration 
worthy of mention, based on our constitutional method 
of making laws and treaties. Two-thirds of the sen- 
ators must concur to make a treaty. Therefore, as- 
suming the same attendance in numbers and personnel 
at each vote, it follows that no bill in conflict with 
that treaty could pass the Senate and become a statute 
unless the opinions of some of the senators constitut- 
ing that two-thirds should undergo a change. 

The number of changes thus necessary to enact a 
subsequent statute in conflict with a prior treaty, 
would be such a number as would convert an affirma- 
tive two-thirds into a negative majority, that is a half 
plus one. Or, in other words, the number of changes 
would be one-sixth the entire vote plus one — this addi- 
tional one vote being necessary because a statute must 
receive a majority vote, that is to say, at least one 
more than a half. 

Assuming a full Senate of ninety-two members 
present, and the passage of a treaty by sixty-two ayes 
to thirty noes, then the passage of the conflicting 
statute by forty-seven ayes to forty-five noes would 
indicate a change of opinion by seventeen members 
away from the treaty. 

We could scarcely assume that such a change could 
take place except fGr urgent public reasons, that 

[7] 



THE TREATY - MAKING POWER 

should properly be allowed to have their due weight 
under the Constitution. 

Statute Prevails Over Treaty. 

That a subsequent statute does prevail over a prior 
treaty has been uniformly held by our Supreme Court. 
Such was the ruling in 2 Pet. 253, 314. 112 U. S. 580. 
124 U. S. 190. 130 U. S. 581. 149 U. S. 698. 175 
U. S. 460. 

The pith of the reasoning by which that conclusion 
was reached is well expressed in the following extract 
from the opinion delivered by Justice Field in 130 
U. S. 600: "By the Constitution, laws made in pur- 
suance thereof, and treaties made under the authority 
of the United States are both declared to be the su- 
preme law of the land, and no paramount authority 
is given to one over the other. The treaty, it is true, 
is in its nature a contract between nations, and is 
often merely promissory in its character, requiring 
legislation to carry its stipulations into effect. Such 
legislation will be open to future repeal or amend- 
ment. If the treaty operates by its own force, and 
relates to a subject within the power of Congress, it 
would be deemed, in that particular, only the equiva- 
lent of a legislative act, to be repealed or modified at 
the pleasure of Congress." 

The soundness of this doctrine seems never to have 
been questioned. But the opinion of the court con- 
tained another sentence immediately following those 

[8] 



THE TREATY - MAKING POWER 

above quoted, and in these words: "The last expres- 
sion of the sovereign will must control." 

Can a Treaty Annul a Statute? 

If this be the correct construction of the Con- 
stitution, then not only can an act of Congress annul 
a prior treaty, but a treaty can annul a prior act of 
Congress. 

This doctrine of a subsequent treaty taking prece- 
dence over a prior act of Congress, is stoutly com- 
bated by Judge Tucker in his great work on the 
Constitution, and he calls attention to the fact that 
the deliverance of the court last quoted was an obiter 
dictum. The issue raised by the record in that case 
was whether a subsequent act of Congress repealed 
a prior treaty, and that was decided in the affirmative. 
The obiter dictum consisted in the declaration that 
a subsequent treaty would repeal a prior act of 
Congress. 

But on further investigation it appears that this 
same obiter was announced in 124 U. S. 190, in these 
plain words : i ' The one last in date will control. ' ' 

Prior to that time, the court had said in 11 Wal- 
lace, 621, "A treaty may supersede a prior act of 
Congress. ' ' 

And even as early as 1829, the court in 2 Pet. 315, 
said referring to a treaty: "Had such been its lan- 
guage, it would have acted directly on the subject, 
and would have repealed those acts of Congress which 
were repugnant to it." 

Our dual system of state and Federal governments 

[9] 



THE TREATY - MAKING POWER 

has made us familiar with the principle of two sepa- 
rate political powers acting together, each supreme in 
its own sphere. But to hold that two such powers 
may have equal paramountcy in the same sphere in- 
volves some logical inconsistencies, and constitutes in- 
deed a novel combination. 

The spectacle of a see-saw between treaty and 
statute, each above the other, according to posterior 
date, could not be conducive to the stability of our 
laws, nor flattering to our national pride. 

No case has yet been presented to the Supreme 
Court directly involving the issue of a repeal of a 
statute by a subsequent treaty, although the court 
has repeatedly committed itself by obiter dicta to 
the upholding of such a repeal. 

The political departments of the government have 
wisely avoided making such an issue for the judiciary 
to decide. The identical question came before Con- 
gress in 1815 in connection with the treaty of Com- 
merce and Navigation, which exempted British ton- 
nage and goods imported in their bottoms, from the 
operation of an existing Federal statute laying addi- 
tional duties on such tonnage and goods. 

The treaty had been already proclaimed, but the 
Senate, anticipating some obstructive action by the 
House, passed a bill and sent it to the House for con- 
currence, declaring of no force or effect any act or 
acts contrary to the provisions of the treaty — thus 
showing that, in the opinion of the Senate, it was at 
least wise, if not essential, that a treaty conflicting 

[10] 



THE TREATY - MAKING POWER 

with a prior statute should itself be supported by a 
statute repealing that prior statute. 

It is a significant fact that, in the debates on this 
bill in connection with the treaty of 1815, John C. 
Calhoun, then a member of the House, took the posi- 
tion that the treaty was all sufficient and needed no 
statute to support its repeal of the duties — though 
it is proper to add that he based his argument in 
part on the ground that a law had been passed dur- 
ing the previous session providing for a repeal of 
these duties, to take effect upon the repeal of similar 
duties by England, which mutual repeal he claimed 
had been effected by the treaty. 

But the power of annulment by Congress is not 
the only means in reach of the House, to make its re- 
straining influence felt in the matter of treaties. 
The provision of the Constitution that "no money 
shall be drawn from the treasury, but in consequence 
of appropriations to be made by law," enables the 
House by withholding appropriations to effectually 
paralyze the arm of the treaty-making power in all 
instances where money is necessary to carry it into 
effect. The same would be true of any treaty which 
involved the exercise of other powers to which the 
assent of the House is necessary. 

Moral Obligations of House Toward Effectuating 

a Treaty. 

Just how far the House is under a moral obliga- 
tion to effectuate a treaty by concurring in appropria- 

' [ii] 



THE TREATY - MAKING POWER 

tions, or other necessary measures, is a question of 
ethics for the individual members of the House. 

To hold this obligation imperative in all cases 
would be to deprive a member of the exercise of that 
discretion and judgment with which he is clothed as 
a representative of the people. To hold that he can 
indifferently recognize or renounce that obligation, 
would be to place too low a value on the national faith 
as pledged by the President and Senate. The ten- 
dency of the House to keep the national faith when- 
ever pledged by the President and the Senate, will 
properly and necessarily increase as the power of in- 
ternational public opinion grows stronger, which it 
must surely do under the beneficent influence of the 
Hague Tribunal. 

Whatever criticism might arise in the domain of 
international ethics against the action of the law- 
making department of our government in repealing, 
or in refusing to effectuate, a treaty, neither the mo- 
tive nor the propriety nor the wisdom of that action 
could ever be called in question in the courts of our 
country. 130 U. S. 602. 

But although Congress may annul a treaty, it can 
not destroy or impair transferable property rights 
that have already become vested under the treaty. 
130 U. S. 609. 

Treaty-Power as Affected by Powers Reserved to 

the States. 

We come now to consider how far the treaty-making 
power is affected by the powers reserved to the states. 

[12] 



THE TREATY - MAKING POWER 

And here we find ourselves entering that twilight 
zone between state and Federal authority, where 
many of the ablest men of our country have followed 
divergent paths in search of more light. 

In the first place, it is clear that no authority to 
make any sort of a treaty with a foreign power re- 
mains in the state. The states as such, have no for- 
eign relations. There are forty-six flags at home, but 
only one flag abroad ; the flag of the Union — ' ' the 
broad ensign of the Republic, now known and honored 
throughout the earth, still full high advanced.' ' 

In the second place, let it be observed that in con- 
stitutional construction, the phrase, "the reserved 
rights of the states, ' ' has more particular reference to 
the enumerated division of powers between the states 
on the one hand, and the Federal government on the 
other. 

When our dual system of state and national govern- 
ments was being worked out in the convention of 
1787, it was not from mere choice that powers dele- 
gated to Congress were enumerated; it was a matter 
of necessity from the nature of the dual system. It 
was not necessary to specify both the delegated and 
the reserved powers. But it was necessary to specify 
one or the other of these classes. It was practically 
impossible to enumerate the reserved powers, and 
hence the easier course was adopted of enumerating 
the delegated powers. 

But as to treaty-making, there was no enumeration 
of powers suggestive of others reserved. 

[13] 



THE TREATY - MAKING POWER 

Moreover, the Tenth Amendment provides that 
"The powers not delegated to the United States by 
the Constitution, nor prohibited by it to the states, 
are reserved to the states respectively or to the people. ' ' 
And treaty-making is one of those powers dealt with 
in the Constitution expressly "prohibited by it to the 
states. ' ' 

It will therefore be seen that the particular enum- 
eration of powers delegated to Congress in the Con- 
stitution has reference only to intra-national and not 
to inter-national relations, and consequently can have 
no direct bearing on the subject of treaties, all of 
which deal necessarily with foreign relations. 

It was through failure to observe this proper rule 
of construction, that the Supreme Court of California, 
in 1850, fell into the obvious error of holding that 
a treaty is supreme only when it is made "in rela- 
tion to those subjects the jurisdiction over which has 
been exclusively intrusted to Congress." 1 Cal. 232. 

The entire contractual power of treaty-making 
having been delegated, it follows that nothing that is 
legitimately the subject of a treaty remains within 
the exclusive power of a state. The treaty-making 
power of the President and the Senate being thus ex- 
clusive the vital question arises : what is its constitu- 
tional sphere of operation? 

On broad principles of construction, it must be held 
that the treaty-making power being a creature of the 
Constitution, can not destroy its creator, nor substan- 
tially change the structure of the government, state or 

[14] 



THE TREATY - MAKING POWER 

national, as builded by the Constitution, nor violate 
any express inhibitions of the Constitution, nor per- 
vert the purpose of its own creation by attempting 
to deal with subjects not properly within the range 
of treaty-making among nations. 

The Supreme Court was made the protector of the 
Constitution, and it has not hesitated when occasion 
arose to invalidate acts of Congress that invaded the 
sphere of the reserved rights of the states. We have 
also seen that it has declared treaty provisions an- 
nulled or repealed by subsequent acts of Congress. 
But there seems to have been no case in our history, 
where a treaty has been declared void in the first in- 
stance by the court, on the ground that the treaty- 
making department had exceeded its powers by em- 
bracing a subject outside of its sphere. And yet, 
it would seem clear that such would be the duty of the 
court in a proper case made involving private rights. 

Treaty-Power and Police Powers. 

But the question that still urges itself is this : Are 
there any powers that a state can exercise in deroga- 
tion of a treaty? 

If so, they must be found in that undefined and 
almost undefinable region of jurisprudence, called, 
for lack of a better name, " Police Powers." 

Congress possessing only delegated powers, with 
the accompanying right of adopting such means as 
are proper and necessary for their exercise, and no 
police powers having been delegated, it follows that 

[15] 



THE TREATY - MAKING POWER 

as against the states Congress can not act within this 
sphere of internal police, except when necessary to 
carry into operation some of its admitted powers : — 
such, for instance, as that to regulate commerce be- 
tween the states and foreign nations. Congress has 
no police powers as such, except in the District of 
Columbia and the territories, and over lands owned 
by the Federal government within a state. 

Now the Supreme Court has time and again de- 
cided that while states can exercise their police pow- 
ers as against Congress, they must do so in such a 
manner as not to impair the exercise by Congress of 
powers delegated to it. 

Wherefore, inasmuch as a state must so use its 
police power as not to hamper Congress, the law- 
making power of the Federal government, in the ex- 
ercise of functions committed to it, notwithstanding 
the express reservations as against Congress, the con- 
clusion would seem to follow with even greater 
force that a like restriction must attach to a state 
in the use of its police powers as against the treaty- 
making power in the exercise of functions committed 
to it — because as to treaty-making, there were no 
express reservations to the states. 

And thus we come back again to the same question 
in another form: What are the legitimate functions 
of the treaty-making power? 

In 1843, the Supreme Court of New Hampshire de- 
clared: "The police power of the several states, re- 
garded as separate governments, is not a subject 

[16] 






THE TREATY - MAKING POWER 

matter to which the treaty-making power extends." 
13 New Hampshire, 576. And we have already seen 
that the Supreme Court of California limited the 
treaty-power to those subjects which had been in- 
trusted to the exclusive jurisdiction of Congress. 

But the Supreme Court of the United States, speak- 
ing through Justice Field, in 133 U. S. p. 266, says 
that the treaty-power extends "to all proper subjects 
of negotiation" between our government and the 
governments of other nations. After stating that a 
treaty can not do what the Constitution forbids, nor 
change the nature of the national government, nor of 
the state government, nor cede any portion of the 
territory of a state without its consent, Justice Field 
adds : ' ' But with these exceptions, it is not perceived 
that there is any limit to the questions that can be 
adjusted touching any matter which is properly the 
subject of negotiation with a foreign country." 

So far as the inheritance by aliens of property in 
a state is concerned, the Supreme Court has decided 
emphatically and repeatedly that a treaty is para- 
mount to a state law. 3rd Dallas 199 ; 7th Cranch 
627 ; 2nd Wheaton 259 ; 4th Wheaton 453 ; 9th Whea- 
ton 488; 10th Wheaton 181; 100 U. S. 483; 133 
U. S. 258. 

In 1857 when William L. Marcy was Secretary of 
State, Attorney-General Caleb Cushing, in construing 
the British treaty of 1794, gave a written opinion in 
which he used the following language: "All impedi- 
ments of alienage are absolutely levelled with the 

[17] 



THE TREATY - MAKING POWER 

ground, despite the laws of the state." Op. Atty.- 
General, Vol. 8, p. 417. 

On the other hand, Judge Tucker questions the 
soundness of this conclusion as to treaty regulation 
of property-descent to aliens against state laws, and 
terms it "an extreme view of the treaty-power." 
Tucker's Const. U. S. 732. 

But the long and unbroken line of decisions by the 
Supreme Court leaves no doubt that it is now estab- 
lished law in the United States that the treaty-making 
power can nullify state laws affecting the inheritance 
of property by aliens. Such construction is backed up 
by a century of historical recognition. 

This established principle is big with logical eon- 
sequences. 

Because, since Congress can claim no right to regu- 
late the descent of property in a state, we herein see : 
first, the treaty-making power doing things inside of 
a state which it is beyond the power of Congress to 
do; and, second, we see the annulment by the treaty- 
making power of a police law of a state. This latter 
conclusion must follow, unless it be contended that the 
regulation of the descent of property is not within the 
meaning of that comprehensive term ' ' Police Powers. 
But this contention could scarcely be maintained in 
the face of the specific language of Justice McLean 
in 5th Howard 588, that the regulation of "the trans- 
mission of estates real and personal" is part of the 
state police, and the broader language of Chief Justice 
Taney in the same case, that the police powers "are 

[18] 



THE TREATY - MAKING POWER 

nothing more nor less than the powers of government 
inherent in every sovereignty * * * that is to say 
* * * the power to govern men and things." 5th 
Howard 582. 

It being established that there are some police 
powers of a state which a treaty may directly nullify, 
it remains for us to ask: Are there any state police 
powers not subject to such nullification? 

According to repeated adjudications, treaties can 
abolish all state discriminations against aliens in the 
matter of inheriting property; can they do the same 
in all other matters ? — for instance, in the matter of 
marriage ? 

No case involving such an extreme test as this 
has yet been presented. But it would be very dif- 
ficult in the face of past decisions to sustain the para- 
mountcy of a state law on the mere plea that the 
regulation of marriage was a reserved police power. 

So far as an invasion of the police power is con- 
cerned, every argument for the regulation of prop- 
erty inheritance would seem to apply to the regula- 
tion of marriage contracts. If any distinction at all 
can be drawn, it would have to be between property 
rights and personal rights. 

The cases so far adjudicated refer to property 
rights, so that the issue as to personal rights may be 
considered as still open on the record. 

Possibly a more hopeful defense against a treaty 
nullifying a state law on so domestic and personal a 
subject as marriage could be made along the line of 

[19] 



THE TREATY - MAKING POWER 

showing that the regulation of the marriage relation 
is distinctly beyond the range of those objects 
"usually regulated by treaty," to borrow the words 
of Mr. Jefferson. 

However, we need apprehend no practical danger 
from this particular phase of our theoretical discus- 
sion. 

Japanese Question in California. 

Let us now apply the principles we have deduced 
to the concrete case of the recent Japanese question 
in California. 

Several anti-Japanese bills were introduced in the 
state legislature. We will select the one most clearly 
within the recognized police powers, namely, the bill 
providing separate schools for the Japanese children, 
and prohibiting them from attending the regular 
schools for white children. 

On March 21st, 1895, a treaty negotiated in 1894 
between Japan and the United States was proclaimed 
to continue during a period of twelve years from 
July 17, 1899. This treaty is entitled, "A Treaty 
of Commerce and Navigation," and contains what is 
now the customary provision, known as the "Most 
Favored Nation Clause," according to which, the 
subjects of Japan are entitled to all of the privileges 
relating to trade and commerce, which may be 
granted to subjects of the most favored nation. 

The administration at Washington took the posi- 
tion that the proposed law of California excluding 

[20] 



THE TREATY - MAKING POWER 

Japanese children from the schools — while admitting 
English, French, German and other white children ■ — 
was a discrimination against Japanese children, and 
a violation of their rights under the treaty that went 
into effect in 1899. 

Whether this commercial treaty actually embraced 
such a subject as school attendance, would seem to 
be open to some doubt. But that particular question 
does not come within the scope of our immediate 
inquiry. We will assume for the sake of the argu- 
ment that the treaty does embrace school attendance. 

It was only by the earnest appeal and vigorous ac- 
tion of the President and Secretary of State that the 
passage of this bill by the California legislature Was 
prevented. 

But suppose the bill had been enacted into law ■ — 
which would have been paramount, the Federal treaty, 
or the state law? 

The Supreme Court in 113 U. S. 31, decided spe- 
cifically "that regulations to promote * * * educa- 
tion, etc." were embraced within the police power of 
a state. But we have also seen that the mere fact 
that a state law is within the police power is not of 
itself a protection against the treaty-making power. 

To whatever extent, if at all, such a law can be 
said to interfere with property rights, it would, of 
course, be void against the treaty under decisions of 
the court already cited. 

But aside from that view, the proposed state law 
was a premeditated indignity and insult to a proud 

[21] 



THE TftEATY - MAKING POWER 

and militant nation. To allow educational privileges 
to the subjects of vanquished Bussia, and deny those 
same privileges to subjects of victorious Japan, when 
both held the same treaty rights, would be an invid- 
ious distinction well calculated to arouse resentment 
or retaliation that might easily lead to war. 

But there could be no war between Japan and 
California. The first step of an invading soldier 
on the soil of California would be the signal for 
national hostilities. The whole power of the nation 
must go to her defense because our Constitution sol- 
emnly guarantees that "The United States * * * 
shall protect each of them (the states) against in- 
vasion. " Art. 4, Section 4. 

Can one self-willed state be permitted to force the 
whole nation into war against its will, and for a cause 
too, which the nation may believe to be a breach of 
plighted national faith? To answer this question in 
the affirmative would be to seriously impeach not only 
the foresight, but the common sense of the statesmen 
who framed our Constitution. 

If such an issue should ever be presented to the 
Supreme Court, we could scarcely doubt that the 
treaty would be sustained as against the state law. 

Nor need the court experience any great difficulty 
in formulating an argument upholding such an 
opinion. For, it is the essence of the police power of 
a state that its effect is substantially intra-state or 
local. Now if the effect of the exercise of a police 
power extends beyond the state and materially inter- 

[22] 



THE TREATY -MAKING POWER 

feres with national foreign relations, the power bo 
exercised ceases thereby and therein to be a mere 
police power, for the very reason that it operates sub- 
stantially upon foreign relations, and therefore comes 
within the sphere of the treaty-making power. 

And this would be true, regardless of the possible 
distinction heretofore suggested between property 
rights and personal rights. 

Let this then stand as our formulated conclusion 
of the whole matter: In a conflict between a Federal 
treaty and a state law if the foreign relations of the 
nation are substantially involved, the treaty must be 
paramount. 

In deciding the question whether foreign relations 
are substantially involved, it is manifest that no fixed 
rule can be laid down. Each case would have to stand 
or fall by its own facts. But this much we know, 
that the growing intimacy of the nations of the world, 
will necessarily result in extending the functions of 
treaty-making over a greater variety of subjects and 
details. 

Just Rights of States Not Imperiled by Treaty- 
Power. 
At first thought, the conclusion at which we have 
arrived in support of the treaty-making power might 
appear to be a just cause for grave concern to those 
of us who believe that the future welfare of our 
country depends largely upon preserving in its in- 

[23] 



THE TREATY - MAKING POWER 

tegrity our dual system of local and national gov- 
ernments. 

But this fear is more fanciful than real. Treaties 
are matters of mutual contract between sovereigns. 
Neither party to a treaty would be willing to put 
aliens upon a higher plane of privilege than its own 
citizens in respect to any matter whatever. So that 
there is little probability of any personal rights that 
lie within the police powers of a state being unneces- 
sarily sacrificed by a national treaty. 

Moreover, a treaty can not be adopted by a mere 
numerical majority. It must receive a two-thirds 
vote of the Senate, where each state, however small, 
stands upon an equal footing with every other state, 
however large. 

Again, we can take assurance from the record of 
the past century, during which the treaty-power has 
made no attempt to improperly or oppressively invade 
the police powers of the states. Nor has any treaty 
ever been negotiated, whose validity was enough in 
doubt to cause it to be directly attacked in the Su- 
preme Court on the charge that it exceeded the juris- 
diction of the treaty-making power. 

Every sovereign has the right under international 
law to prescribe the conditions on which aliens may 
come into its territory or to exclude them altogether. 

As a practical question, our fellow citizens of the 
Pacific states need have no fear that the President 
and two -thirds of the Senate will ever permit 
them to be exposed to any serious danger of being 

[24] 



THE TREAT Y - MAKING POWER 

over-run by an alien race. " Blood is thicker than 
water. ' ' 

The diplomacy of the Federal government has al- 
ready accomplished far more toward checking the 
immigration of Japanese laborers than could pos- 
sibly have been accomplished by the California schoo; 
bill. 

No Surrender of Principle. 

Nor is this conclusion that we have reached as to 
the authority of the treaty-making power to encroach 
upon the police powers of the states any latter-day 
surrender of any real principle of States Rights here- 
tofore maintained. 

The truth of this assertion can be historically sup- 
ported by the expressed opinions of men illustrious 
in our political history. 

It was Benjamin Franklin, who, in the Constitu- 
tional Convention of 1787, offered an amendment in 
the Committee of the Whole on May 31st which was 
unanimously agreed to, placing ''treaties subsisting 
under the authority of the Union" in equal dignity 
with the articles of union themselves. It was emi- 
nently appropriate that this provision, so intimately 
connected with our foreign relations, should have 
been proposed by a man so experienced in diplomacy 
and so justly celebrated for sound practical sense and 
worldly wisdom as Mr. Franklin. 

Edmund Randolph was one of the three members of 
the Convention of 1787 who were so much opposed 

[25] 



THE TREATY - MAKING POWER 

to certain other provisions of the Constitution that 
they refused to sign their names to the completed 
draft of the instrument. He was so jealous of the 
rights of the states as against the central govern- 
ment, that, in his opening speech of May 29th, he 
"disclaimed any intention to give indefinite powers to 
the national legislature, declaring that he was entirely 
opposed to such an inroad on the state jurisdictions, 
and that he did not think any considerations whatever 
could ever change his determination. His opinion Was 
fixed on this point. " 

And yet, in this same speech when pointing out 
some of the defects in the Articles of Confederation, 
he said that the confederation "could not cause in- 
fractions of treaties or the law of nations to be pun- 
ished ' ' and that particular states might, by their con- 
duct, provoke war without control." And he pressed 
upon the convention the necessity of making provision 
in the Constitution to guard against such danger in. 
the future. 

Calhoun and the Treaty-Power. 

John C. Calhoun possessed one of the greatest 
minds that ever labored in the field of American 
statesmanship. His intellectual bent was severely log- 
ical. Even when he was wrong, he was logically 
right — that is to say, any error of his conclusion 
would be found hidden in an unproven premise and 
not in his process of reasoning. 

Facts and first principles were the only materials 

[26] 



THE TREATY - MAKING POWER 

he needed to build the most elaborate structure. His 
" Discourse on the Constitution and Government of 
the United States/' an elaborate philosophical trea- 
tise, comprising nearly three hundred printed pages, 
is substantially without a quotation from any source 
except from the instrument he was analyzing, with 
occasional reference to the Federalist, a contemporary 
production. His mind seemed to scorn the aid of 
other minds in deducing the truth from any given 
state of facts. 

This champion of the doctrine of nullification, the 
most extreme assertion of State Rights within the 
Union, agreed in substance with John Marshall upon 
that once mooted question whether it was within the 
power and duty of the Supreme Court to declare 
void a law that was in violation of the Constitution. He 
declared in his famous " South Carolina Exposition" 
of 1828 that such power rested upon an inference, 
but an "inference so clear that no express provision 
could render it more certain, ' ' — though he also main- 
tained that the decision was operative only between 
the parties to the case, and could not bind a sovereign 
state. 

On this subject of the treaty-making power he 
was no less explicit in maintaining its constitutional 
supremacy. 

On June 28, 1844, while Secretary of State under 
President Tyler, Mr. Calhoun addressed a letter to 
Mr. Wheaton, then American minister to Prussia, in 

[27] 



THE TEEATY - MAKING POWER 

which he used the following language: "The treaty- 
making power has indeed been regarded to be so 
comprehensive as to embrace, with few exceptions, all 
questions that can possibly arise between us and other 
nations, and which can only be adjusted by their 
mutual consent, whether the subject matter be com- 
prised among the delegated or reserved powers." 

Thus we have from the pen of this great defender 
of the rights of the states an explicit sanction to the 
doctrine that the treaty-making power may encroach 
upon the reserved rights and police powers of the 
states when our foreign relations are involved. 

Again in his Discourse on the Constitution of the 
United States, composed toward the close of his life 
(1848-9), he elucidated, with keen and profound 
analysis, the principles involved in the treaty-making 
power, and after mentioning certain admitted restric- 
tions, general and constitutional, he says: "Within 
these limits, all questions which may arise between 
us and other powers, he the subject matter what it 
may, fall within the limits of the treaty-making power 
and may be adjusted by it." 

It would be most unfortunate for the cause of the 
preservation of our dual system of state and national 
governments, each supreme in its sphere, if any of 
its advocates should be so rash as to throw down a 
gage of battle upon the alleged rights of a state to 
over-ride a treaty, merely because it encroaches upon 
the police powers of the state. 

[28] 



THE TREATY - MAKING POWER 

We should join battle upon some issue holding out 
better hope of success. 

Where the Danger of Centralization Lies. 

It can be safely affirmed that the danger of cen- 
tralization in the United States does not lie in the 
treaty-making power which deals with our foreign 
relations; but in the law-making and law-executing 
power of the Federal government, which deals directly 
with the relations of the national government and the 
states. 

And let us not shut our eyes to the fact that this 
danger of centralization is increased by the insidious 
and growing tendency of some of the states themselves 
to shift upon the broad shoulders of the Federal gov- 
ernment burdens — especially financial burdens — 
which should be borne by the states. This tendency 
doubtless springs in large measure from the differ- 
ence in the methods of taxation generally adopted by 
the state and Federal governments — the one conducive 
to economy; the other productive of extravagance. 

When we pay our taxes in most of the states, we 
know the one local collector and just how much we pay 
him. When the burden becomes too heavy, we rebel, 
and hold our state legislators responsible at the 
ballot box. But when we pay our Federal tariff taxes, 
we can not well figure out just how much we pay, nor 
do we know the collectors — except that all sellers 
of protected articles are to some extent Federal tax 
gatherers. Public money that comes easy goes easy. 

[29] 



THE TREATY - MAKING POWER 

Nothing would more conduce to the much needed 
economy of Federal administration than the supple- 
menting of stationary low tariff revenues by the impo- 
sition of an income tax with a variable rate, rising 
and falling, according to the increasing or decreasing 
demands on the treasury. The taxpayers would then 
realize more acutely the benefits of an economical ad- 
ministration, and the states would understand better 
than now that, on the whole, they really save nothing 
to the people by drawing money from the Federal 
treasury rather than from the state treasury. From 
whichever source the money comes, the people pay it. 

The Supreme Court and the Constitution. 

In the event the treaty-making power should ever 
undertake to over-reach the admittedly wide limits of 
its constitutional prerogatives, and to use the name of 
" treaty " as mere colorable authority for usurpation, 
we could rely with strong faith on the Supreme Court 
to maintain the proper balance of our governmental 
system. That tribunal was made the defender of the 
Constitution and, in the natural order of things, it 
will be the last department of the government to yield 
to the pressure of the centralizing forces inherent in 
all democracies. Despite some grounds for adverse 
criticism, that court has made a notable record for 
fidelity to the Constitution. 

In the face of political clamor, it was faithful to 
that charter in its opinion in the Dred Scott case — 

[30] 



THE TREATY - MAKING POWER 

which opinion, be it remembered, was never reversed 
except by the sword and the Thirteenth amendment. 

In the midst of the tnrmoil, confusion and doubt 
as to what political changes the Civil War had 
wrought in our governmental structure, the Supreme 
Court in 1888 (7 Wall, 700) sounded this clear note 
of assurance : 

"The preservation of the states and the mainte- 
nance of their governments are as much within the 
care of the Constitution as the preservation of the 
Union and the maintenance of the National govern- 
ment. ' ' 

Before the passions engendered by Reconstruction 
had passed away, the court, still in the face of political 
criticism, upheld the claims of the states in the cele- 
brated Civil Rights cases. 

In declaring unconstitutional the first two sections 
of the Civil Rights Act of March 1, 1875, the Supreme 
Court in 1883, construing the Fourteenth amendment, 
said: 

"It is state action of a particular character that is 
prohibited. Individual invasion of individual rights 
is not the subject matter of the amendment ***** 
It does not authorize Congress to create a Code of 
Municipal law for the regulation of private rights, but 
to provide modes of redress against the operation of 
state laws and the action of state officers executive 
or judicial when these are subversive of the funda- 
mental rights specified in the amendment." 109 
U. S. 11. 

[31] 



THE TREATY - MAKING POWER 

Again, in a recent decision (1907) in 206 U. S. 
46, the court reiterates its position in the following un- 
mistakable terms: 

"The government of the United States is one of 
enumerated powers; it has no inherent powers of 
sovereignty; the enumeration of the powers granted 
is to be found in the Constitution of the United States 
and in that alone ; the manifest purpose of the Tenth 
Amendment to the Constitution is to put beyond dis- 
pute the proposition that all powers not granted, are 
reserved to the people, and if in the changes of the 
years further powers ought to be possessed by Con- 
gress, they must be obtained by a new grant from 
the people." 

Though our state Supreme Courts are clothed with 
a like power to declare void state laws when in viola- 
tion of their written constitutions, yet it remains true 
that no other court in the world has as much power 
as the Supreme Court of the United States. More- 
over, if our present form of government should ever 
be destroyed by forces working from within, no other 
government that could be erected on its ruins would 
ever give a court like power. 

For this court by its own decisions to permit our 
constitutional government, of which it is the ap- 
pointed guardian, to be overthrown would be to in- 
volve itself in the ruins. Dereliction to its high duty 
to protect the Constitution against all enemies would 
eventually mean abdication — nay more — it would 
mean self-destruction. 

[32] 



' THE TREATY - MAKING POWER 

That exalted tribunal has every incentive of selfish 
interest and noble duty to stand faithful to its great 
trust. 

Having outlived and discarded the doctrines of 
nullification and secession, We, the People of the 
United States, have created a unified national senti- 
ment that will ever be a safe protection against that 
form of political disintegration, which threatened the 
Union for three-quarters of a century. 

It now behooves us to be on guard against too much 
consolidation, involving, as it does, the gradual de- 
struction of the vital principle of local government, 
with its accompanying virtues of individuality and 
sturdy self-reliance, and substituting in their stead 
the vices of depending for initiative and guidance on 
the Federal government, and too often begging help 
from the Federal treasury. 

Having barely survived Scylla, let us carefully 
avoid Charybdis. 

When I express my confidence in the wisdom of 
local government, of course, I do not mean local 
mobism. 

Many noted thinkers and orators from the South 
have written and spoken of States Rights with vary- 
ing limitations of the doctrine. But it remained for 
a full-blooded Puritan from New England to say 
something quite recently on this time-worn theme that 
was surpassingly beautiful. In his address before 
the New England Society at Charleston, S. C, in 
1898, Senator Hoar, of Massachusetts, said that he 

[33] 



THE TREATY - MAKING POWER 






loved to think of the states as "beautiful personal- 
ities." That was a fine stroke of the artist's brush. 

The fact is, that this old doctrine of States Rights 
is based on the soundest philosophy, when restricted 
within constitutional limitations and practiced along 
with the correlative doctrine of State Duties — I re- 
peat it State Duties. It breathes the free spirit of 
Home Rule and individualism — and after all, is not 
the individual, whatever his environment, the safest 
unit on which to build a great nation? 

It was the failure of Governor Aldgelt, of Illinois, 
to perform a State Duty that made it necessary and 
justifiable for President Cleveland to send Federal 
troops to Chicago to suppress mob rule that was ob- 
structing United States mails. 

Our people of all sections of the Union could set 
themselves to no wiser, nor more timely, task than 
guarding our dual system of government against every ] 
insidious danger that may threaten to transform it 
into a centralized, consolidated democracy — un- 
wieldy in bulk, unchecked in power, ruled by the 
tyranny of a numerical majority, and becoming at 
last the unhappy victim of socialistic experimenta- 
tion — not the socialism that springs from an altru- 
istic Christianity, such as all true patriots might wel- 
come; but the socialism that destroys the home and 
denies the right of private property, two of the most 
potent factors of civilization. 



[34] 



SLAVERY AND THE RACE 
PROBLEM IN THE SOUTH 



"Remember that to change thy opinion, and to follow 
him who corrects thy error, is as consistent with freedom 
as it is to persist in thy error." 

MARCUS AURELIUS. 

"There is no ignorance more shameful than to admit 
as true that which one does not understand; and there 
is no advantage so great as that of being set free from 
error" 

SOCRATES. 



INTRODUCTION 

A concise statement of the reasons which led to 
this publication in a permanent form may appropri- 
ately be in the nature of a Publisher *s Announcement, 
and excerpts from correspondence relating to it will 
probably give the best idea of these reasons. 

The correspondence regarding this speech began 
by a letter from the writer, of which the following is 
a copy: 

"July 5th, 1906. 

"Honorable William H. Fleming, 

My Dear Mr. Fleming: — 

I think that you and the whole country 
are to be congratulated upon your grand exposition of the 
principles which should guide the South, and indeed the 
whole country, in dealing with the problem of the negro 
race. 

I have for several years spent my winters in Africa, 
and have studied the conditions of the African upon his own 
ground, having penetrated to the equatorial countries of the 
Uganda and the Congo State, in addition to traveling the 
whole extent of the Soudan, and while I agree with you in 
your statement that 'God knows the South wants no more 
of that curse/ of slavery, and while I agree with the gen- 
eral statement that 'slavery is the sum of all evils/ I have 
come to the conclusion that the greatest wrong which slav- 
ery inflicts upon a people is not upon the slave, but upon 
the slaveholder. No matter how greatly the slave is de- 
graded, the evil effects to the superior race that holds the 

[37] 



INTRODUCTION 

slave is in my opinion the greater wrong of the two to the 
general civilization of the world. 

To be, as you are, a leader in this movement, is in my 
opinion one of the highest honors to which any American 
can aspire. I deem your speech a real milestone in the 
path of progress, and with your consent, I should be glad 
to reprint it in an attractive form to extend its circulation 
as far as I can. 

Yours sincerely, 

Dana Estes." 

A prompt reply contained the consent to the pub- 
lication, and in offering it to the public, the editor felt 
that the endorsement of the leaders of political and 
moral movements throughout the country would be of 
service in extending its influence. He, therefore, ad- 
dressed President Roosevelt for this purpose, and the 
following are excerpts from the correspondence re- 
garding this subject : 

"July 23rd, 1906. 
"To the President, • 

My Dear Sir: — 

I think it beyond doubt that your at- 
tention has been attracted to the patriotic and important 
speech of the Honorable William H. Fleming of Georgia. 

I have asked of him, as per enclosed copy of my letter 
to him of July 5th, the privilege of reprinting this in an 
attractive form to extend its benefits as widely as possible. 
It seems to me to mark an epoch in this agitation, and I am 
informed that since the delivery of this speech the Commit- 
tee of the Georgia legislature has reported against the pas- 
sage of the disfranchisement bill without a dissenting vote. 

[38] 



INTRODUCTION 

I believe this to be largely the result of Mr. Fleming's great 
speech. 

If it would be entirely proper for you, in view of your 
exalted official position, to commend the sentiments of this 
speech, and permit such commendation to be used in an 
introduction to the speech, I should be pleased to receive the 
same from you. 

The publication of the speech is not intended as a 
commercial transaction. ***** 

Yours respectfully, 

Dana Estes." 

"Oyster Bay, N. Y., July 25, 1906. 
"My Dear Mr. Estes : 

I am glad that you are to publish ex- 
Congressman Fleming's noteworthy speech in more perma- 
nent form than it is possible ordinarily to publish such 
speeches. ***** 

Mr. Fleming's speech is admirable, alike for its fear- 
lessness, its sanity, and the high purpose which it shows. 
The problems of any one part of our great common country 
should be held to be the problems of all our country — at 
least to the extent that all our people should give their 
hearty and respectful sympathy to those who in their own 
neighborhood, are trying to solve their particular problems 
aright. In each locality we have our own special and 
peculiar difficulties ; and when a brave and honest man does 
good work in meeting the peculiar difficulties of his own 
region, he not only does good therein, but by example and 
influence he helps Americans in other parts of our great 
commonwealth manfully to grapple with the various evils 
which they in their turn, have to strive against. 

Sincerely yours, 

Theodore Roosevelt." 

[39] 



INTRODUCTION 

At the writer's especial request, Mr. Fleming has 
furnished him with a few excerpts from the many 
letters of approval which he has received from all 
parts of the country; and especially from leaders of 
opinion in the South. In his reply he says: "Many 
of the strongest commendations which my speech has 
received have been given to me in person by word of 
mouth, and, consequently, do not appear in written 
form that could be used." 

Among the many received by letters may be 
quoted the following: 

(Hon. Moorfield Storey, Boston, Mass., letter June 29th.) 
"It is a courageous thing to stand up in one's country 
and speak as you have done, and such courage is very much 
needed today. You have never lacked that quality, and I 
hope your example will be an inspiration to others." 

(Judge John L. Hopkins of Atlanta, Ga., letter July 28th.) 

"I have read your speech more than once. It is satis- 
fying. In some of its parts it has been comforting to me — 
in all, interesting. The preparation of such a paper is a 
valuable service to the state. It was needed — it was just 
the right thing." 

(Judge Joel Branhan of Rome, Ga., letter June 23rd.) 
"I want to thank you for your grand speech on the 
disfranchisement of the negro before the Alumni of the 
University of Georgia on the 19th inst., which I have just 
had the pleasure of reading. It is truthful, honest and 
unanswerable." 

(R. F. Campbell, Asheville, N. C, letter June 25th.) 
"In intellectual strength and moral soundness, it takes 
its place easily among the very best things ever written or 
spoken on this subject." 

[40] 



INTRODUCTION 

(Hon. Harry Hammond, Beach Island, S. C, letter 
June 27th.) 

"Van Hoist, a northern sympathizer, said a century and 
a half must elapse before a verdict could be reached as to 
the wisdom of emancipation. The solution of the race 
problem advocated by you — Justice to the Negro — needs 
no time for its confirmation. It is registered among the 
indisputable truths of eternity itself." 

(Former Congressman Wm. H. Felton, Cartersville, Ga.) 

"I thank you with all my heart for the address made at 
the Athens Commencement. Yours were words of sober 
caution and profound prudential wisdom." 

(Emory Speer, U. S. District Judge, letter June 27th.) 
"I have received the pamphlet print of your great 
speech on Slavery and the Race Problem in the South. I 
had the happiness of hearing this appeal to the intelligence 
and sense of justice of our people, and I cannot well over- 
state the pleasure it gave me to see with what enthusiasm 
the Alumni body of our Alma Mater present received such 
a fearless and truthful exposition of great and salutary 
truths." 

(James R. Randal, New Orleans, Author of "Maryland, 
My Maryland," letter June 27th.) 
"The speech was a masterpiece. No one else could 
have done it." 

(Judge W. H. Hulsey, Atlanta, Ga., letter June 29th.) 

"Reading your address from start to finish, it pleases 
me to say that every patriotic Georgian ought to feel grate- 
ful to you for giving to your state a clear, forceful and 
masterly presentation in your Athens address of what may 
be termed the Negro Problem." 

[41] 



INTRODUCTION 

(Congressman W. M. Howard, Atlanta, Ga., letter 
June 25th.) 
"I am very glad to get the speech, not because it is a 
revelation to me of your views on this question, but espe- 
cially to know precisely what you said in view of the criti- 
cism I have seen in the papers about it. The speech is up 
to the very best of your ability, and I am proud of you as 
a friend and a citizen of Georgia because of the pertinence 
and power of the speech. I am glad that you made it when 
and where you did. It is the strongest and clearest voice 
that has been heard since this issue became state wide." 

(Prof. W. S. Bean, Clinton, S. C, letter June 25th.) 
"I am delighted with the address, its calmness and fair- 
ness of statement, its ample basis of fact, its appeal to a 
sense of justice and fairness and its belief in the principle 
that no wrong can be inflicted for political purposes 
which will not certainly react upon the agent at sometime. 
***** I am glad you had such a splendid op- 
portunity, such a fine, intelligent audience, and that you 
rose to the occasion in a speech that is masterly, statesman- 
like and Christian. May you live long to keep up such 
a good work and find staunch friends to stand by you and 
your principles." 

(C. P. Goodyear, Brunswick, Ga., letter June 27th.) 
"That was a great and statesmanlike and patriotic 
speech of yours at the University. The day will come 
when wise men in Georgia, — good men everywhere, — will 
appreciate the calm temper and patriotic thought which 
dictated it." 

(George Foster Peabody, New York City, letter 

June 28th.) 
"The more I think of the matter, the more do I believe, 
that you have done a far-reaching service and that it may 

[42] 



INTRODUCTION 

well prove to be the case that no address during the last 
twenty years has been more important." 

( Ex-Go v. Allen D. Candler, Atlanta, Ga., letter 
July 4th.) 

"I have read it with a great deal of interest, and it is 
without exaggeration a gem, and every loyal Georgian who 
knows Georgia and her career in the past and the apparent 
insuperable obstacles her people have had to surmount 
will thank you for it. * * * I think no fitter occasion 
eould have been found for the Utterance of the lofty senti- 
ments contained in it than the Commencement of the State 
University before the Alumni Association of the oldest state 
college in America." 

(T. C. Betterton, Dalton, Ga., letter July 8th.) 

"Please allow me to say that you have in this address 
performed the highest possible service to your state and to 
the South. I would that every citizen in our state could 
read it thoroughly." 

(Rev. Walker Lewis, Augusta, Ga., letter July 15th.) 
"I have just finished the best Sunday reading I have 
seen in many years. It is your great article on the Race 
Question. It is masterful, it is unanswerable, it is worthy 
of a great statesman; it is Christian philosophy and right- 
eousness." 

(Francis Lynde Stetson, Sterlington, Rockland Co., 

N. Y., letter July 8th.) 

"I consider it the best presentation of the various 

phases of this difficult question that I have ever seen, and 

his proposed solution through the ordinary observation of 

the universal mandate of the moral law attests his sanity." 

[43] 



INTRODUCTION 

"Lake George, N. Y., 3rd July, 1906. 
"The Honorable William H. Fleming, Augusta, Ga. 
My Dear Sir: — 

I cannot forbear writing to you of my delight 
at your great speech, delivered before the Alumni 
Society at the University of Georgia. In its insight, its; 
iron logic, its political perspective, and its high morality, , 
it is, I think, one of the greatest constructive addresses of 
the time; and these qualities mark it as belonging to that 
class of political literature to which the speeches of Web- 
ster, Hayne and Lincoln belong. I would not be guilty of ' 
flattery, but such an address at such a time and place is an 
event which gives one a legitimate pride in human kind, and 
a joy in the mere fact of living. I have long felt that this 
time with its problems, on the principle that great occasions 
make great men, is one which must call into being and ac- 
tion men of the first order, men who are capable of seeing 
the significance of the time and of meeting its great de- 
mands. I think the men are coming, and I hail your speech 
as a sign that they are coming. 

Faithfully yours, 

Samuel H. Bishop." 

(Prof. Chas. Eliot Norton, Cambridge, Mass., letter Aug. 

11th.) 

"Nothing could be better than its spirit. It would be 
a most encouraging sign in these confused days should your 
appeal to the intelligent and moral sympathy of the com- 
munity be heeded and responded to." 

(Richard C. Ogden, Madison Ave., New York, letter Aug. 

12th.) 

"I appreciate your great contribution to the solution 
of the one great question that retards the growth of Ameri- 
can unity." 

[44] 



INTRODUCTION 

(H. B. Brown, Ex-Justice Sup. Court, U. S., letter Aug. 

5th.) 
"I cannot refrain from expressing to you my appre- 
ciation of your masterly address of June 19th upon Slavery 
and the Race Problem. It is quite the most satisfactory of 
any I have seen upon that subject. I cannot doubt your 
views will ultimately prevail in the South, as they do al- 
ready in the North. I have always believed the question 
of suffrage would finally be solved by the adoption of an 
educational or property qualification, which, if fairly ad- 
ministered, would answer the purpose. I do not think 
anyone should be disfranchised solely on account of color." 

The writer has made no attempt to collect the 
opinions of the Press, though he has seen many that 
were as emphatic in commendation as are the personal 
opinions herewith submitted. He can not, however, 
refrain from a brief excerpt from an editorial of the 
"Augusta (Ga.) Chronicle": 

"The speech was pronounced by all who heard it or 
read it to be the greatest ever delivered from the University 
platform." 

It may not be inappropriately stated that commer- 
cial considerations have had no part in influencing the 
publication of this speech, that the profits arising 
from its publication will be devoted to educational 
work in the South, and that the editor, and not the 
author, is responsible for the insertion of the quota- 
tions at the beginning of this work. 

Dana Estes. 

[45] 



INTRODUCTION 

(Booker T. Washington, Tuskegee, Ala., letter June 30th, 

1906.) 

"I read that speech with a great deal of interest and 
encouragement; and in behalf of my race, let me thank 
you for the brave and helpful words in its behalf." 

"Three Oaks, Hickman Street, Augusta, 

March 21, 1917. 
"Dear Sir:— 

I read your great oration yesterday from begin- 
ning to end, and I could not express without seeming to 
exaggerate, my very profound gratitude to you for it. You 
have said with beautiful clearness and admirable courage 
the things that needed to be said, and most of all said by a 
Southern man, and I feel that our nation, our civilization, 
owes you a debt which we can not too eagerly unite in 
trying to repay. 

I congratulate you from my heart. 
Yours sincerely, 
(Signed) W. D. Howells. 

Hon. Wm. H. Fleming." 



[46] 



SLAVEEY AND THE RACE PROBLEM 
IN THE SOUTH. 

Brothers of the Alumni Society, Ladies and Gentle- 
men : 

It is my purpose to discuss slavery and the race 
problem in the South, with special reference to our 
own State of Georgia. 

No public issue is more deserving of thoughtful 
consideration by our people, and no occasion could be 
more fit for its discussion. This audience is qualified 
in head and heart to appreciate at its true value every 
argument that may be advanced, and this platform 
at our chief seat of learning is so lifted up, that words 
spoken here may be heard in all parts of the State, 
echoing among the "Hills of Habersham" and over 
the ' ' Sea Marshes of Glynn. ' ' 

If there be any one present perturbed by a secret 
doubt as to the propriety of my bringing this subject 
and this occasion together in the midst of the pending 
political campaign in Georgia, let me hasten to allay 
his fears with the assurance that I shall carefully re- 
frain from all offensive personal allusions. Speaking 
to this very point some weeks before his fatal illness, 
Chancellor Hill cordially approved of my selection of 
the race problem for discussion at this time before the 
alumni of the university, and he added with char- 

[47] 



SLAVERY AND THE RACE PROBLEM 

acteristic broadmindedness : "I wish my platform at 
Athens to be a place for the freest expression of hon- 
est thought.' 7 

At the outset, we should realize that if we are to 
make any genuine progress toward a right solution of 
our problem, we must approach it in a spirit of the 
utmost candor, and with an eye single to the ascertain- 
ment of the truth. The pessimist "sailing the Vesu- 
vian Bay" listens for the dreaded rumblings of the 
distant mountain — blind to the wondrous beauties of 
earth and sky about him. The optimist floating down 
the placid upper stream pictures to himself an end- 
less panorama of peaceful landscapes — deaf to the 
thundering cataract of Niagara just below him. But 
better than pessimism and better than optimism is 
that philosophy which faces facts as they are, and 
courageously interprets their meaning. 

Slavery and Christianity. 

In the earlier civilizations slavery was the rule, not 
the exception. But with the advent of the Christ and 
His teachings, a silent, gentle, yet all-compelling force 
began its work on the universal heart of humanity. 
Christianity adjusted itself to existing governmental 
institutions, including slavery. But it inculcated 
such lofty doctrines of love and duty, and created 
such vivid conceptions of a personal God and Father 
of us all, that it was only a question of time when 
Christian peoples could not hold in slavery those of 
their own faith and blood. 

[48] 



.SLAVERY AND THE RACE PROBLEM 

In England in 1696 the doctrine had obtained 
wide acceptance that Christian baptism of itself 
worked a legal manumission of the slave. Argu- 
ment to that effect was urged by able lawyers in the 
court of King's Bench in the suit of Chamberlain v. 
Herney, but the case went off on another ground, and 
that point was not decided. About the same time, 
however, the colonies of Maryland, Virginia and 
South Carolina passed laws that Christian baptism 
should not free the negro slave, ' ' any opinion or mat- 
ter to the contrary notwithstanding." Thus we see 
a recognition of the necessity at that period of our his- 
tory of controlling by statutory enactments this ex- 
panding sentiment of Christian brotherhood among 
the masses of the people, so as to prevent it from 
embracing the alien negro race. 

The march of Christian civilization had put an 
end to white slavery, but negro slavery still nourished, 
chiefly because the negro was of a different race- 
blood from his masters. Oneness in faith and blood 
had grown to mean freedom for the white man. But 
oneness in faith, without oneness in blood, still meant 
slavery for the negro. 

Indeed, negro slavery as a historical institution in 
Western civilization occupies a unique position of its 
own. It began in the fifteenth century when white 
slavery had practically ceased. Most other slaveries 
were incidental results of wars. Negro slavery 
originated in commerce, in trade and barter, and so 
continued until it was suppressed. 

[49] 






SLAVERY AND THE RACE PROBLEM 

Justification of Negro Slavery Based on Race- 
Inferiority. 

When in later years the institution was summoned 
before the bar of the world's public opinion, its most 
logical and profound defenders admitted the wrong- 
fulness of white slavery, but justified negro slavery 
on the plea of the natural inferiority of the negro 
race. 

Alexander Stephens, then vice-president of the 
Southern Confederacy, in his famous Corner-Stone 
Speech at Savannah in March, 1861, said: "Many 
governments have been founded upon the principle of 
subordination and serfdom of certain classes of the 
same race. Such were, and are, in violation of the 
laws of nature. Our system contains no such viola- 
tion of nature's laws. With us, all the white race, 
however high or low, rich or poor, are equal in the 
eye of the law. Not so with the negro ; subordination 
is his place." * * * * Referring to the Con- 
federacy, he declared: "Its foundations are laid, its 
corner stone rests, upon the great truth that the negro 
is not equal to the white man, that slavery — subordi- 
nation to the superior race — is his natural and normal 
condition. " 

The fact of race inequality here stated cannot well 
be denied. But there is still a fatal flaw in the logic. 
That flaw lies in the assumption that a superior race 
has the right to hold an inferior race in slavery. A 
race can not be justly deprived of liberty merely be* 

[50] 






SLAVERY AND THE RACE PROBLEM 

cause it is relatively inferior to another. If so, all 
other branches of the human family could justly be 
reduced to slavery by the highest, most masterful 
branch — and that mastery could only be determined 
by force of arms. The obligation of the superior to 
lead and direct does not carry with it the right to en- 
slave. 

Mr. Stephens further declared in his speech : " It is 
upon this, as I have stated, our social fabric is firmly 
planted, and I can not permit myself to doubt the ul- 
timate success of the full recognition of this principle 
throughout the civilized and enlightened world." 

Here we have one of the ablest intellects of his day 
not only asserting that negro slavery was legally and 
morally right, but predicting that its recognition 
would become universal throughout the civilized 
world — a prediction made within five years of its 
abolition in the United States, and within twenty- 
seven years of its abolition in Brazil, which marked 
the final disappearance of human slavery as a legal- 
ized institution among civilized peoples. 

Let me say in passing, that this Corner-Stone 
speech is not to be found in the authorized volume 
containing the biography and speeches of Mr. 
Stephens. One can scarcely suppress the question: 
Did the great commoner prefer for posterity to judge 
him by other speeches ? Certain it is, that the views 
he expressed on negro slavery did not spring from 
hardness of heart, or want of sympathy with any suf- 
fering creature on earth. At his death, his negro 

[51] 



SLAVERY AND THE RACE PROBLEM 

body servant in tearful accents pronounced upon him 
this noble eulogy: "Mars Alee was kinder to dogs 
than most men is to folks. ' ' 

But Mr. Stephens was defending the then existing 
institution of slavery handed down to his people by 
their fathers, recognized by historical analogies from 
the Bible, and sanctioned by the Federal Constitution. 
His moral nature was uncompromising. There was 
no way to adjust that moral nature to existing 
conditions except by making the assumption, which 
he did make, of the right of a superior race to en- 
slave an inferior race. 

If race environment could so warp the judgment 
o( a great intellect like that of Alexander Stephens, 
other men may well be cautions lest they miss the 
truth. 

We need not stop to discuss whether the North or 
South was the more responsible for negro slavery in 
America. It takes two to make a bargain. North- 
ern traders sold and Southern planters bought. If 
Charleston, South Carolina, was one of the chief ports 
o\' destination for slave trading vessels, Salem, Massa- 
chusetts, was one of the chief ports from whence 
those vessels sailed. 

In the earlier days of the Southern colonies there 
were many strong protests against negro slavery. 
But once established it continued to grow and flourish 
until we reached those unhappy days foreshadowed 
by Mr. Madison, when he said in the constitutional 
convention of 17S7 that the real antagonism would 

[52] 



SLAVERY AND THE RACE PROBLEM 

not arise between the large States on the one hand 
and the small States on the other, as many seemed to 
fear, but that ' ' The institution of slavery and its con- 
sequences formed the line of discrimination. ' ' 

Slavery the Irritating Cause op the War. 

No historian can ever truthfully assert that the 
men who bore the banner of the Confederacy in vic- 
tory and in defeat with such matchless courage and 
heroic sacrifice were moved only by the selfish purpose 
of holding their black fellowmen in bondage. They 
were inspired by the noblest sentiments of patriotism. 
So far from being traitors to the Constitution of their 
fathers, which Mr. Gladstone declared was the "most 
wonderful work ever struck off at a given time by the 
brain and purpose of man," they reverenced that 
great instrument next to the Bible. So far from 
trampling it under foot, they held it up as their 
shield. They appealed to the North and West to 
recognize the binding obligation of that Constitution, 
as interpreted by the highest court, only to hear it de- 
nounced at last as "a covenant with death and an 
agreement with hell." 

And yet, we must in candor admit that the truth- 
ful historian will write it down that slavery was the 
particular irritating cause that forced on the conflict 
of arms between the sections, though deeper causes 
lay at the foundation of our sectional differences on 
centralization and State rights. 

When Robert Toombs made his memorable fare- 

[53] 



SLAVERY AND THE RACE PROBLEM 

well speech in the United States Senate on January 
7, 1861, he laid down five propositions, setting forth 
the contentions of the South, which, if granted, would 
have averted disunion. Every one of those five prop- 
ositions was a clear cut, logical deduction from the 
original meaning and intent of the Constitution, and 
all five of them centred around the institution of 
slavery. 

Again, when the conflict was over and the Consti- 
tution was amended at three separate times, two of 
these amendments, the thirteenth and fifteenth, re- 
ferred exclusively to slavery, and the other, the 
fourteenth, referred chiefly to slavery. No other 
historical facts, though there are many, need to be 
cited to prove that slavery was the immediate precip- 
itating cause of the Civil War. 

The Thirteenth Amendment. 

The thirteenth amendment, ratified in 1865, 
abolishing slavery, was a legitimate and necessary 
result of the arbitrament of the sword. Mr. Lincoln 
at first declared that the purpose of the war, on the 
part of the government, was to preserve the Union 
and not to free the slaves. But the progress of events 
had rendered him powerless to confine the struggling 
forces of social upheaval within that limitation — even 
if his personal views had undergone no change. 

Great was the relief to many thoughtful minds 
in the South when this fruitful cause of sectional con- 
tention had been removed. In an address delivered 

[54] 



SLAVERY AND THE RACE PROBLEM 

from this platform in 1871, Benjamin H. Hill gave 
thanks in fervid metaphor that the "dusky Helen" 
had left the crumbling walls of Troy, and that 
Southern genius, once "bound like Prometheus" to 
the rock of slavery, had been loosed from its bonds. 

The Fourteenth Amendment. 

The fourteenth amendment, ratified in 1868, was 
a combination of judicial wisdom in the first section, 
of fruitless compromise in the second section, and of 
political proscription in the third section. 

The first section of this amendment must now 
be regarded as one of the very best parts of the entire 
instrument. It gave for the first time an authoritative 
definition of United States citizenship, and forbade 
any state to abridge the privileges of such citizens or 
to deprive any person of life, liberty or property 
without due process of law, or to deny to any person 
within its jurisdiction the equal protection of the 
laws. We had lived nearly three-quarters of a cen- 
tury under a government that had no constitutional 
or statutory definition of its own citizenship, and with 
no sufficient jurisdiction in its courts to give adequate 
protection to the equal rights now attaching to that 
citizenship. 

What constituted one a citizen of the United 
States had long been a subject of discussion in the 
public journals, in the executive departments and 
in the courts. The Supreme Court, in the Dred Scott 
case in 1857, decided that a person of African descent, 

[55] 



SLAVERY AND THE RACE PROBLEM 

whether slave or free, was not, and could not be a 
citizen of a State or of the United States. That de- 
cision was, of course, superseded by the fourteenth 
amendment. 

This first section was profound in its wisdom and 
far-reaching in its effect upon the rights of life, 
liberty and property, not only of blacks but of whites. 
That eminent Southern jurist, the Hon. Hannis Tay- 
lor, referring specially to this section, has well said: 
"From a purely scientific point of view the Constitu- 
tion of the United States never reached its logical 
completion until after the adoption of the fourteenth 
amendment. ' ' 

The omission from the original Constitution of 
a definition of United States citizenship and of a dis- 
tinct provision against State encroachment on equal 
rights attaching thereto, carried with it a deep signifi- 
cance. 

Few facts in our history point more unerringly 
to the conclusion that in the minds of the framers of 
that instrument, the paramount allegiance of the citi- 
zen was to his State, and not to the United States. It 
was this sense of duty which properly constrained Lee 
and other lovers of the Union to surrender their high 
commissions in the Federal army and cast their for- 
tunes with their own seceding States. Happily, the 
future holds for us no possibility of the recurrence of 
that divided allegiance. 

Historically, under the Constitution, the South 
was right, both as to slavery and secession, but the 

[56] 



SLAVERY AND THE RACE PROBLEM 

simple truth is that public opinion on those two sub- 
jects had outgrown the Constitution. 

No man contributed more to the development of 
public opinion against disunion than did Mr. Web- 
ster. When he made his great speech in 1830 in re- 
ply to Mr. Hayne, closing with that matchless tribute 
to the Union flag : ' ' The broad ensign of the Republic, 
now known and honored throughout the world, still 
full high advanced" — he created and vitalized and 
electrified Union sentiment throughout the length 
and breadth of the land. That speech, more than 
the word or deed of any other one man, prepared the 
way for the coming of Lincoln, and made possible the 
vast armies of Grant. After all, should not Webster 
be given first place in the Hall of Fame dedicated to 
Saviors of the Union? 

The Fifteenth Amendment. 

The fifteenth amendment, ratified in 1872, pro- 
hibited the United States or any State, in prescribing 
suffrage qualifications, from discriminating against 
citizens of the United States on account of race, color 
or previous condition of servitude. It did not confer 
the ballot upon any one — it only prohibited discrim- 
ination on account of a specified difference. The 
right to vote is not a privilege or attribute of national 
citizenship under either the fourteenth or fifteenth 
amendment ; but the right to be exempt from dis- 
crimination in voting on account of race is an at- 

[57] 



SLAVERY AND THE RACE PROBLEM 

tribute of national citizenship under the fifteenth 
amendment. 

This amendment was at the time of its adoption 
a doubtful and dangerous experiment — but once 
made, it is beyond recall. 

It embodied a distinct addition to the principle 
set out in the second section of the fourteenth amend- 
ment, which latter impliedly permitted a State to 
deny the ballot to the negro if it were willing to suffer 
the penalty of a proportionate reduction of repre- 
sentation in the lower house of Congress. 

So far as the negro is concerned, the second sec- 
tion of the fourteenth amendment was a political com- 
promise against him, while the fifteenth amendment 
was a complete declaration of his equal suffrage 
rights. 

A resolution for a fourteenth amendment, in al- 
most the identical words finally used in this second 
section in 1868, had been up for discussion in the 
Senate as early as 1866. Charles Sumner then de- 
nounced it as "a compromise of human rights, the 
most immoral, indecent and utterly shameful of any 
in our history." 

Mr. Blaine, in his book, "Twenty Years in Con- 
gress," took the position that the enactment of the 
fifteenth amendment operated as a practical repeal 
of the second section of the fourteenth amendment. 
He says: "Before the adoption of the fifteenth 
amendment, if a State should exclude the negro 
from suffrage the next step would be for Con- 

[58] 



SLAVERY AND THE RACE PROBLEM 

gress to exclude the negro from the basis of appor- 
tionment. After the adoption of the fifteenth 
amendment, if a State should exclude the negro from 
suffrage, the next step would be for the Supreme 
Court to declare the act was unconstitutional and 
therefore null and void." 

Some latter-day statesmen, who have introduced 
bills in Congress to reduce Southern representation, 
do not seem to agree with Mr. Blaine. 

Verily, if the party of Sumner should ever aban- 
don the vindication of the fifteenth amendment by 
substituting for it the compromise of the fourteenth 
amendment, the shade of that eminent statesman 
would surely be moved to indignation and contempt — 
if it still concerns itself with mundane political 
affairs. Such a substitute-compromise now could 
bring no good to either whites or blacks of the South. 
It would work evil and evil only. 

Some Reasons for Adopting the Fifteenth 
Amendment. 

The fifteenth amendment was naturally received 
with much bitterness by the white people of the 
South, because many of them interpreted it to mean 
that our political enemies of the North, who held 
control of the government, intended thereby to doom 
the South to perpetual negro domination. 

No doubt many of such advocates were moved 
by prejudice and hate, but we of the South, in this 
day, must not blind ourselves to the fact that this 

[59] 



SLAVERY AND THE RACE PROBLEM 

amendment was advocated by some men then in pub- 
lic life who were not controlled by snch base motives, 
but were patriotically striving to settle a great funda- 
mental question of government on an enduring 
basis. 

Let us not forget that when Congress passed the 
joint resolution submitting the fifteenth amendment 
to the States for adoption, the negroes had already 
been made citizens of the United States by the 
fourteenth amendment, and it was impossible to con- 
join that status of citizenship with a total exclusion 
of the negro race from the ballot without undermin- 
ing some of the foundation principles of our repre- 
sentative Republic. 

Bear in mind, also, that at the time when Con- 
gress acted on that resolution in 1869, the negro had 
already exercised the right of suffrage under the re- 
construction acts of Congress, beginning in 1867. It 
was not under the fifteenth amendment, but under 
the prior reconstruction acts, that the negroes cast 
their first ballots. 

So that the issue then was, not whether to give 
the negroes something they had never possessed, but 
whether to deny them in the future a privilege they 
had already actually enjoyed. 

The Southern States were expecting soon to be 
restored to political autonomy. What stand would 
the white people of those States take as to the rights 
of their former slaves? To what extremes of pillage 
and slaughter might not the millions of negroes go 

[60] 



SLAVERY AND THE RACE PROBLEM 

under fear of partial or total re-enslavement ? These 
and other questions were hard to answer. To what- 
ever point of the political horizon the thoughtful 
patriot turned his gaze, the clouds were dark and por- 
tentous. A crisis was at hand. It had to be met. 

Giving the ballot to five million of newly-freed 
slaves, of an inferior or backward race, ignorant, 
unaccustomed to do or think for themselves, could not 
have been the deliberate act of wise statesmanship, 
but only the choice of what seemed to be the lesser of 
two evils. In truth, the whole plan seems to have 
been an effort not only to obliterate at once, as with 
a stroke of the pen, all distinctions imposed by law, 
but to ignore all distinctions imposed by nature. 

Many thoughtful men at the North are now of 
the opinion that it would have been far better had the 
military control in the South been continued and 
the ballot withheld for a time, at least, from the 
freed men, and finally bestowed upon them by de- 
grees. But that is a dead issue now. 

As a practical measure of procedure, the fifteenth 
amendment was in many respects harsh and cruel to- 
ward the white people of the South, but theoretically 
it was necessary to round out the Constitution of a 
representative Republic, based on that equality of 
citizenship before the law which had already been 
foreshadowed by the thirteenth and fourteenth 
amendments. 

We may well thank God that the South has re- 
covered from the immediate shock of these rough 

[61] 



SLAVERY AND THE RACE PROBLEM 

post-bellum operations in political surgery. In com- 
parison to the past — with its civil war and its recon- 
struction — the future can hold no terrors for us. 
Only let us act with wisdom and not lose what we 
have gained through our suffering. 

Any Future Suffrage Amendment Will Increase 
Power of Congress. 

The fifteenth amendment may, by negative acqui- 
escence of the American people, become for a time a 
dead letter, but that three-fourths of the forty-five or 
more States will ever affirmatively repeal it for the 
purpose of allowing five or six Southern States to 
withhold from our negro citizens, as a race, the right 
to the ballot, is, to my mind, an hallucination too ex- 
treme for serious consideration. 

If these post-bellum amendments of the Consti- 
tution bearing upon slavery shall ever be altered by 
future amendments, the alteration will be in the di- 
rection of placing under Federal control the entire 
subject of suffrage qualifications in all National and 
State elections. The unmistakable trend of our 
political and social development from the beginning 
of the government has been toward the centre, not 
away from it. The centripetal force has been 
stronger than the centrifugal force. Under a law 
of social gravitation all the parts have been drawn 
more intimately into one national unity. 

To suppose that this national authority would of 
its own accord emasculate itself and surrender its 

[62] 



; SLAVERY AND THE RACE PROBLEM 

own present consolidated power back to the former 
diverse elements from which it was wrested, would be 
to reverse every record of political history, and to 
ignore every lesson of political philosophy. 

Indeed, when the resolution for the fifteenth 
amendment was under discussion in the Senate in 
1869, an amendment to that resolution was offered to 
confer upon Congress the full power to prescribe the 
qualifications for voters and officeholders, both in the 
States and in the United States. 

It was not adopted then because the time was 
not ripe. But we may accept it to be as certain as 
any future movement of this kind can be, that if the 
Constitution shall be amended on the subject of the 
suffrage that amendment will not restore lost power 
to the States, but will confer more power on the Na- 
tional government. The less we agitate it the better. 

Numerical Relation op Races. 

We have now reached the stage in our discussion 
where we may best consider what is, to my mind, the 
most important factor in our problem, namely, the 
numerical relation of the whites and the blacks of the 
Southern States. Having the advantage in land- 
holdings and all other forms of wealth, in intellect, 
in racial pride and strength, our white supremacy can 
never be overthrown except by force of numbers. 
For many years after the war we could not rid our- 
selves of the apprehension that at some day in the 
future we might be borne down by numerical ma- 

[63] 



SLAVERY AND THE RACE PROBLEM 

jorities. These fears were not wholly unfounded at 
that time. 

In slavery, under the fostering care, as well as 
the co mm ercial interest of the master, the negroes 
multiplied in a greater ratio than the whites. What 
effect would the new social order of freedom have on 
that ratio of increase? Was the Caucasian race of 
the South face to face with a pitiless force that might 
gradually but inevitably overwhelm it by sheer 
weight of numbers? If so, would that race yield, 
or would it adopt extreme measures for self-preserva- 
tion? These were momentous and perturbing ques- 
tions. 

The census of 1870, coming first after the war, 
could give very little basis for deduction of any sort. 
But when the census figures of 1880 were made known 
and were compared with those of 1870, that compari- 
son revealed a most ominous situation. Three States, 
South Carolina, Mississippi and Louisiana, each had 
at that time an actual black majority, and the per 
cent of gain for the negroes in the Southern group of 
States, as shown by the statistical experts, was far 
in excess of that of the whites, being 34.3, as against 
27.5 per cent from all sources. 

Judge Tourgee's Prophecies Not Fulfilled. 

Judge Albion W. Tourgee, in his book, "An Ap- 
peal to Caesar," published in 1884, declared that in 

[64] 



SLAVERY AND THE RACE PROBLEM 

the year 1900 every State between Maryland and 
Texas would have a black majority. 

Time has exposed the falsity of that prediction. 
Not one of those States between Maryland and Texas 
that had a white majority in 1880 had lost it in 1900. 
On the contrary, every such State increased its white 
majority, while South Carolina, from 1890 to 1900, 
reduced her negro majority by 2,412, and Louisiana 
in the same period changed a negro majority of 798 
into a white majority of 78,818. 

The white majority in the ten distinctively 
Southern States was increased by 1,002,662 from 
1890 to 1900. In the same period our white majority 
in Georgia rose from 119,542 to 146,481. In every 
Southern State, except Mississippi, where peculiar 
conditions prevailed, the margin of safety for white 
supremacy, even on the basis of numbers, has in- 
creased. 

These predictions of negro majorities were not 
confined to writers of fiction, like Judge Tourgee. 
Professor Gilliam, a statistician of high repute, an- 
nounced that among the whites of the old slave States 
the rate of natural increase from 1870 to 1880 was 
20 per cent, while that of the blacks in the same 
States was 35 per cent. 

With these figures as a basis he reached the con- 
clusion that the 6,000,000 of Southern blacks in 1880 
would increase to 12,000,000 in 1900. But when the 
census takers of 1900 had counted every colored man, 

[65] 



SLAVERY AND THE RACE PROBLEM 

woman and child in the whole United States, the 
total footed np only 8,383,994, which is 3,616,006 less 
than the professor had predicted wonld be found in 
the Southern States alone. 

Judge Tourgee, using these percentages, given 
by Professor Gilliam, argued that all the conditions 
pointed to a greater discrepancy in the future. 

But the census of 1900 shows that the rate of 
increase of the blacks in the South Atlantic States, 
where the conditions are most favorable, was only 14.3 
per cent from 1890 to 1900, instead of 35 per cent, as 
reported for a previous decade, while that of the 
whites stood substantially at its previous record of 
20 per cent. 

It is now an accepted fact that the census of 1870 
did not give a complete enumeration of the negroes in 
the South, and this deficiency, by comparison with 
the more accurate census of 1880, necessarily showed 
a greater proportionate increase among the negroes 
than among the whites. It was this error in figures 
that led to all these unfounded predictions, which 
for a time hung like a pall over the South. 

Margin of Safety for White Supremacy Steadily 

Increasing. 

But the census figures of 1890 and 1900 supplied 
the necessary data for a correct comparison. The re- 
sulting demonstration was that instead of the whites 
of the South being overwhelmed with a deluge of 

[66] 



SLAVERY AND THE RACE PROBLEM 

negroes, the certainty of continued white supremacy 
has steadily increased with every decade.* 

One cause of this comparative decline of the 
negroes in numbers is to be found in the fact that they 
have no source of supply from immigration, while the 
whites are receiving constant accessions from other 
States and from foreign countries. This influx of 
whites, comparatively small at present, will un- 
doubtedly continue and become larger with our 
growing industrial prosperity, which was never on 
so firm a foundation as now. The completion of the 
Panama canal will accelerate the development of our 
resources and give new impetus to white immigra- 
tion, and thus help vastly in the solution of our 
problem. 



* This tendency to a growing majority of the whites over the 
negroes is strikingly supported by the census of 1910. 

In the decade from 1900 to 1910 every State from Maryland to 
Texas that had a white majority in 1900 increased that majority; 
and the two States (South Carolina and Mississippi) that had negro 
majorities in 1900, had reduced these majorities in 1910. 

In South Carolina, the excess of negroes over whites in 1900 
was 224,702. 

In 1910 that excess was 156,286 — showing a decrease of 
68,416 in that decade. 

In Mississippi the excess of negroes over whites in 1900 was 
268,870. In 1910 that excess was 221,860 — showing a decrease of 
47,010 in that decade. 

Georgia's white majority of 146,257 in 1900 was raised to 
255,147 in 1910 — an increase of 108,890. 

In the ten States bordering the Atlantic and the Gulf from 
Maryland to Texas inclusive, the white majority in 1900 was 
3,740,037. 

In 1910 that majority had increased to 5,444,773 — showing 
an increase of 1,704,736 in that decade. 

In the same group of States for the same decade the rate of 
increase of the negroes was slightly in excess of 10 per cent, while 
that of the whites was nearly 24 per cent. 

The total numerical increase of the negroes for the decade 
in that group of States was 648.598; for the whites it was 2,453,333. 

Maryland shows an actual decrease of negro population from 
1900 to 1910 — the number being 3,371. 



[67] 



SLAVERY AND THE RACE PROBLEM 

A second cause of this comparative decline is that 
the death rate among the negroes is abnormally high. 
In typical Southern cities, where the death rate 
among the whites stands at the moderate figures of 10 
to 12 per thousand, it reaches among the negroes from 
20 to 25 per thousand. 

It has recently been asserted by some supposedly 
competent authorities that the death rate of the 
negroes is now probably in excess of their birth rate, 
so that an actual numerical decrease has set in, owing 
largely to the ravages of consumption and certain 
other diseases. Nature exacts obedience to her 
laws — she knows neither pity nor revenge. 

Professor Wilcox of Cornell University and 
Professor Smith of Tulane University, and others, 
have undertaken a more far-reaching investigation 
into the census figures and the facts of ethnological 
history, and have deduced therefrom the conclusion 
that "the negroes will continue to be a steadily 
smaller proportion of our population/' and that in 
the course of time they will die out in America from 
inherent and natural causes. 

Whether these extreme speculations — for they 
are speculations — are well founded or not, yet the 
established facts as to the relative increase of the races 
have a most important bearing on the solution of our 
problem. They show that this problem is not near so 
difficult as it was supposed to be twenty years ago, 
when false prophets were predicting white submer- 
gence. 

[68] 



. SLAVERY AND THE RACE PROBLEM 

And more important still, these facts show that 
the white people of the South, and especially of the 
State of Georgia, can now proceed to work out their 
racial problem on lines of justice to the negro, with- 
out imperilling white supremacy. Those fears which 
once appalled us, we may now dismiss, and let reason 
resume its sway. 

If future years should develop enough race pride 
in the negroes to make them concentrate in one local- 
ity, they might gain ascendency there and give the 
world a practical demonstration of their capacity 
or incapacity as a race-force in civilization. But we 
see no clear signs of such a movement now, and 
Georgia, at least, is in no danger of being chosen as 
the Canaan for that sort of an experiment. 

A Working Plan op Justice. 
In seeking a solution of any difficult problem, the 
first step should be to eliminate the impossible 
schemes proposed, and then concentrate on some line 
of operation that is at least possible. We often hear 
the epigrammatic dictum that there are but three 
possible solutions of our race problem: deportation, 
assimilation or annihilation. When we bring our 
sober senses to bear, all three of these so-called possi- 
bilities appear to be practical impossibilities. Not 
one of the three presents a working hypothesis. 
Physical facts, alone, prevent deportation. Physical 
facts, stressed by an ineradicable race pride, bar the 
way against assimilation. Physical facts, backed by 

[69] 



SLAVERY AND THE RACE PROBLEM 

our religion, our civilization, our very selves, forbid 
annihilation. We can not imitate Herod. 

This much seems clear, beyond doubt, that the 
whites are going to stay in this Southland for all time, 
and so are the negroes going to stay here in greater 
or less proportions for generations to come. If, then, 
both races are to remain together, the plainly sensible 
thing for statesmen of this day to do is to devise the 
best modus % vivendi, or working plan, by which the 
greatest good can be accomplished for ourselves and 
our posterity. We of this day are not expected to 
overload ourselves with the burden of settling all the 
problems of all future ages. If we take good care 
of the next few centuries, we may well be content to 
leave some matters to be attended to by our remote 
posterity — aided, of course, by Providence. 

Over against that Trinity of impossibilities — 
deportation, assimilation or annihilation — let us of- 
fer the simple plan of justice. 

The first and absolutely essential factor in any 
working hypothesis at the South, so far as human 
ken can now foresee, is white supremacy — supremacy 
arising from present natural superiority, but based 
always on justice to the negro. 

Those whose stock in trade is "hating the nig- 
ger" may easily gain some temporary advantage for 
themselves in our white primaries, where it re- 
quires no courage, either physical or moral, to strike 
those who have no power to strike back — not even 
with a paper ballot. But these men will achieve 

[70] 



SLAVERY AND THE RACE PROBLEM 

nothing permanent for the good of the State or of the 
nation by stirring up race passion and prejudice. In- 
justice and persecution will not solve any of the prob- 
lems of the ages. God did not so ordain His universe. 

Justly proud of our race, we refuse to amalga- 
mate with the negro. Nevertheless, the negro is a 
human being, under the Fatherhood of God, and con- 
sequently within the Brotherhood of Man— for those 
two relations are inseparably joined together. All 
soul-possessing creatures must be sons of God, and 
joint heirs of immortality. 

Moreover, the negro is an American citizen, and 
is protected as such, by guarantees of the Constitu- 
tion that are as irrepealable almost as the Bill of 
Rights itself. Nor, if such a thing as repealing these 
guarantees were possible, would it be wise for the 
South. Suppose we admit the oft re-iterated propo- 
sition that no two races so distinct as the Caucasian 
and the negro can live together on terms of perfect 
equality ; yet it is equally true that without some ac- 
cess to the ballot, present or prospective, some partici- 
pation in the government, no inferior race in an elec- 
tive Republic could long protect itself against reduc- 
tion to slavery in many of its substantial forms— and 
God knows the South wants no more of that curse. 

We have long passed the crisis of the disease 
brought on by the existence of slavery in the blood of 
the Republic. Let us now build up the body politic 
in health and strength, and guard it against ever 
again being inoculated with a poison even remotely 

[71] 



SLAVERY AND THE RACE PROBLEM 

resembling that deadly virus. Sporadic cases of 
peonage have already developed in severa] States and 
have been suppressed. Let us provide against every 
appearance of contagion. 

Race Pride Versus Race Prejudice. 

One of the most serious difficulties about the solu- 
tion of our problem is to be found in getting the domi- 
nant whites of the South to draw a proper discrimina- 
tion between a laudable pride in our race, and an un- 
worthy prejudice against the negro race. Prejudice 
of any sort is hostile to that sound judgment which 
the Creator gave us for our guide. Race prejudice 
presents this disturbing element in one of its most 
unreasoning forms. In violence it ranks next to 
religious fanaticism. The one is based on a supposed 
duty to God; the other on a supposed duty to one's 
race-blood. The deeper this sense of duty, the more 
hardened the mind against every appeal to reason. 
In persecuting the early Christians, Paul thought 
he was doing his duty to God. The men who hanged 
the witches in New England thought they were doing 
their duty. 

So, perhaps, may think that ex-preacher,* who in 
our own day has turned playwright, and calling to his 
aid all the accessories of the stage and all the real- 
isms of the living drama, seeks to fan into flame the 
fiercest passions of the whites and blacks. His chief 
purpose, so far as one can logically deduce it, seems 
to be to force into immediate conflagration combus- 



*Rev. Thomas Dixon. 

[72] 



- SLAVERY AND THE RACE PROBLEM 

tible materials, which his heated imagination tells him 
must burn sometime in the future. Apparently he 
chafes under the delay of Providence in bringing on 
the ghastly spectacle, and yearns to witness with his 
own eyes in the flesh that reign of hell on earth be- 
fore his own redeemed soul is ushered into the calm, 
serene and gentle presence of Him whose gospel of 
love and light he once preached to erring men. 

If the true purpose of this reverend gentleman be 
to preserve the blood of our race in its purity by 
creating a sentiment against intermarriage of the 
whites and blacks, let him confine his play to Chicago 
and Boston and New York and Philadelphia and 
other like places, where some few of such marriages 
are said to occur. As for us in the South, we need 
no artificial stimulant to arouse our people against 
that sort of racial intermarriage. Our law forbids 
it, and that is one law no man or woman ever violates. 

Race Purity. 

In this connection let us of the South realize the 
hard fact that the greatest obstacle to the preservation 
of the purity of the blood of our race, about which 
we hear so much in this day, was removed when slav- 
ery was abolished. That institution, as indisputable 
facts too plainly show, wrought much contamination 
of Caucasian blood. 

In Virginia in 1630 a white man-servant was 
publicly flogged for consorting with a negro slave, 
and was required to make public confession of his 

[73] 



SLAVERY AND THE RACE PROBLEM 

guilt on the following Sabbath — but clearly the cus- 
tom of flogging for that offense must soon have fallen 
into "innocuous desuetude." 

In calmly considering now the situation that con- 
fronted our statesmen of the ante-bellum period, that 
which most astounds us is their apparent failure to 
foresee what would have been the inevitable conse- 
quence of an indefinite continuance of slavery in its 
effect on race purity and on relative race numbers. 
The ratio of increase of the negroes was far in excess 
of the whites. The great laboring middle class, 
which forms the backbone of every nation's pluck 
and power, was fast migrating Westward, and the re- 
maining population was rapidly crystallizing into an 
upper class of white slave holders and a lower class of 
negro slaves — the latter out-multiplying their masters 
in numbers. Another one hundred years of slavery 
would in all probability have doomed the South to ab- 
solute negro domination by mere weight of numbers 
whenever emancipation should come — and come it 
was sure to do at some time in the evolution of the 
elemental forces that were at work. 

If there be a Providence who watches over the 
affairs of nations and "slumbers not nor sleeps," we 
may say in all reverence that he would have made 
an almost inexcusable blunder if he had delayed much 
longer the abolition of slavery. 

Social recognition of the true dignity of labor, 
which is so necessary to the growth of a vigorous and 

[74] 



SLAVERY AND THE RACE PROBLEM 

self-respecting middle class, could not be maintained 
in the presence of slavery where manual toil is so gen- 
erally regarded as a badge of servitude. 

Negro Race Projected Forward Beyond 
Natural Development. 

When a subject people in the hard school of ex- 
perience gradually assert themselves and evolve from 
within the physical, mental and spiritual forces that 
achieve their freedom, as did the Anglo-Saxons from 
under the yoke of their Norman conquerors, they 
come forth by. natural growth prepared for the duties 
and responsibilities of self-government. 

But the negro as a race had undergone no such 
process of evolution. His transportation from Africa 
to America and his transition from slavery to free- 
dom were both the results of external impositions and 
not of internal development. The power came from 
without, not from within. He did not win his free- 
dom. It was bestowed upon him. 

Granting that he is only a backward member of 
the great human family, which as most evolutionists 
and Christians believe, is moving steadily on toward 
the distant goal of Millennial perfection, yet we 
cannot fail to see that the negro race was suddenly 
projected forward into a stage of civilization many 
generations in advance of its own natural develop- 
ment. 

Is it any wonder, then, that the negro as a race 

[75] 



SLAVERY AND THE RACE PROBLEM 

should not be altogether fitted to the laws and customs 
and political institutions of those among whom his lot 
was cast? 

Again, is it any wonder that this advanced civil- 
ization should find it necessary at times to apply 
sterner penalties for the curbing of his savage in- 
stincts when he was freed from the accustomed con- 
trol of his master? 

Unfortunately, soon after emancipation, some of 
the worst specimens of the blacks began to commit 
an unpardonable crime. Instantly the white man 
placed over the door of his home, whether it were 
proud mansion or humble cabin, a warning more ter- 
rible in its meaning than that which Dante dreamed 
he saw over the gateway to hell: "Let the brute who 
enters here leave all hope behind.' ' In the presence 
of that crime, men do not think, they only feel. 

But how shall we fix bounds for those who rush 
madly outside the limits of the law? Lynching be- 
gan with this and similar savage crimes. But, alas, 
where will they all end? Let us hope that these ex- 
cesses of both races are merely incidental factors in our 
problem, and that they will soon diminish and event- 
ually disappear. 

Abhorrent as are the crimes of some degenerate 
members of the negro race, we Southern people can 
never forget the simple faith and tragic loyalty of 
those thousands of slaves who guarded and protected 
the women and children at home, while the men were 
at the front fighting to drive back an invading foe 

[76] 



SLAVERY AND THE RACE PROBLEM 

whose victory meant freedom to those slaves them- 
selves. 
Negro Military Salute Confederate Monument. 

Nor is there a total dearth of touching incidents 
in these latter days. Only about a year or so ago, a 
negro military company from Savannah came march- 
ing in full array up Broadway in Augusta. In front 
of them, rising toward the sky in beautiful, artistic 
proportions, stood a marble monument erected by lov- 
ing women to the dead Confederacy. At its base 
were statutes of Lee and Jackson and Cobb and 
Walker, and lifted high up above them all on the top 
of the towering shaft stood the statue of a private 
Confederate soldier. No white military company, no 
camp of maimed Confederate veterans ever pass that 
monument without giving it the honor of a formal 
salute. 

As the negro military comes nearer, one of two 
gentlemen standing in the doorway of a building 
nearby says : ' ' Let us watch now and see if those fel- 
lows will salute the Confederate monument. " The 
other gentleman explains that no salute will be given 
because it will not occur to the commanding officer, 
but that the omission will not be intended as an af- 
front. Scarcely are the words spoken, when the 
negro captain, in clear, ringing tones that prove the 
sincerity of his tribute, gives the command to salute, 
and every black arm instantly obeys that command. 

There was cheering among the white bystanders. 

When the great Wade Hampton lay upon his 

[77] 



SLAVERY AND THE RACE PROBLEM 

death bed he made this prayer: "God bless all my 
people — white and black- — God bless them all. 



3 9 



Suffrage Qualifications. 

While the issue of political control under the 
fifteenth amendment still confronted the Southern 
States, Mississippi, having the greatest negro ma- 
jority, led off with her Constitution of 1891 providing 
an educational qualification for voting. There being 
more illiterate blacks than illiterate whites in Missis- 
sippi, the necessary effect of this law was to promote 
white supremacy. But the law on its face did not 
discriminate against the negro on account of his race. 
It covered whites and blacks alike. 

The Supremei Court of the United States 
promptly decided that this Mississippi law did not 
violate the Federal Constitution. "What the effect of 
its practical administration has been need not now be 
discussed. 

Other States followed with similar laws, based 
primarily on educational qualifications, but soon a 
proviso was evolved to preserve the ballot to illiterate 
whites. An honest administration of a suffrage law 
based on an educational qualification would neces- 
sarily disfranchise a great many whites. Hence a 
proviso was devised to the effect that the educational 
qualification should not apply to any person, nor to 
the descendant of any person, who could have voted 
at some past date, say, for example, January 1, 1867, 
when negroes as a class were not allowed to vote. 

[78] 



SLAVERY AND THE RACE PROBLEM 

This proviso was popularly known as the "Grand- 
father clause," because under it, a man otherwise 
disqualified, might, so to speak, inherit the right of 
suffrage from his grandfather. 

The manifest purpose of this clause was to nullify 
the educational requirement of the State law as to the 
whites, while leaving it in full force as to the negroes, 
and in this way to get around the fifteenth amendment 
of the Federal Constitution, which forbids discrimi- 
nation on account of race. 

The Supreme Court of the United States has 
gone as far as any one could have expected it to go in 
upholding the reserved rights of the States on the 
subject of suffrage. But that court has never directly 
nor indirectly sanctioned the validity of any suffrage 
law containing the Grandfather clause or any other 
clause based on the same principle. 

Whenever the Supreme Court shall take judicial 
notice, as it will do, of the historical fact that on the 
date selected for the Grandfather clause to begin to 
operate, say January 1, 1867, the negroes as a class 
had no right to vote, or when that undeniable or easily 
proven fact is made to appear by evidence, this device 
of the Grandfather clause must fall of its own crook- 
edness. A preference to one race is necessarily the 
legal equivalent of a discrimination against the other 
race. 

It will mark a new departure in American con- 
stitutional law when the right to vote is made in- 
heritable from the non-transmissible attributes of an 

[79] 



SLAVERY AND THE RACE PROBLEM 

ancestor instead of being based on the personal at- 
tributes of the voter. 

It will mark a still further departure in judicial 
construction when the Supreme Court finds in this 
new doctrine a legal justification for sanctioning the 
race discrimination forbidden by the fifteenth amend- 
ment.* 

The Mississippi law, the only one ever squarely 
considered and directly construed by the Supreme 
Court, 170 U. S. 213, does not contain the Grand- 
father clause. That was a device of later invention. 

The case of Giles v. Harris, 189 U. S. 475, involv- 
ing the Alabama law, was dismissed in the Supreme 
Court for want of jurisdiction in the lower court — but 
Justices Brewer, Brown and Harlan dissented in vig- 
orous terms. 

The latest case, of Jones v. Montague, 194 U. S. 



* This prediction proved true. See 238 U. S. page 347: 
Guinn v. United States. 

(From The Augusta Chronicle, July 20, 1915.) 

U. S. SUPREME COURT DECISION COMPLETE VINDICATION 

FOR EX-CONGRESSMAN FLEMING 



By Unanimous Opinion, Written by Chief Justice White, Himself a 
Democrat and Confederate Soldier, the "Grandfather" Clause 
Declared Unconstitutional — What Mr. Fleming Said in His 
Famous Athens Speech Nine Years Ago. 



At the commencement of the University of Georgia in 1906, 
former Congressman Wm. H. Fleming, as the alumni orator, de- 
livered an address on the race problem in the South. 

One of the points on which he antagonized the popular political 
sentiment of that day, was the so-called "Grandfather clause," 
under which Georgia and other States were attempting to dis- 
franchise the negro. 

Mr. Fleming took the position that the Supreme Court of the 
United States would declare that clause unconstitutional, while many 
other public men in Georgia seemed disposed to criticise Mr. Fleming, 
and assured the people that the proposed law would stand every test. 

[80] 



• SLAVERY AND THE RACE PROBLEM 

147, involving the Virginia law, was dismissed be- 
cause the act sought to be enjoined — the issuing of 
certificates of election, etc., to members of Congress — 
had already been done, and the congressmen had 
taken their seats before the case was reached in the 
Supreme Court. 

Indeed, it is no secret that those lawyers who 
undertake to defend these disfranchisement enact- 
ments, place their chief reliance in the technical diffi- 
culties of getting the merits of the question before 
the Supreme Court. It goes without saying, however, 
that lawyers can be found to surmount those techni- 
cal difficulties, and at the bar of the Supreme Court 
confront the "Grandfather" clause of the State 
Constitutions with the " anti-race-discrimination ' * 
clause of the Federal Constitution. 

The result scarcely admits of a doubt. 



How completely Mr. Fleming's legal position has been vindi- 
cated after nine years of waiting, is shown by the following ex- 
tracts from his Athens address and from the recent unanimous deci- 
sions of the Supreme Court of the United States delivered by Chief 
Justice White, himself a Southern man and a Confederate soldier. 



From Mr. Fleming's address, June 19, 1906: 

1 'Whenever the Supreme Court shall take judicial notice, as it 
will do, of the historical fact that on the date selected for the 
'Grandfather' clause to begin to operate, say January 1, 1867, the 
negroes as a class had no right to vote, or when that undeniable 
or easily proven fact is made to appear by evidence, this device 
of the 'Grandfather' clause must fall of its own crookedness. 
A preference to one race is necessarily the legal equivalent of a 
discrimination against the other race. 

"It will be a new departure in American constitutional law 
when the right to vote is made inheritable from the non-transmissible 
attributes of an ancestor, instead of being based on the personal 
attributes of the voter. 

' 'It will mark a still further departure in judicial construction 
when the Supreme Court finds in the new doctrine a legal justifica- 
tion for sanctioning the race discrimination forbidden by the 
fifteenth amendment. * * * * 

"How long do the advocates of this method of disfranchise- 

[81] 



SLAVERY AND THE RACE PROBLEM 

Disfranchisement Movement in Georgia. 

What, then, shall we, as Georgians and Ameri- 
cans, true to our own great State, and true to the 
greater nation of which it is a part, say of the move- 
ment which is now being so freely discussed, and 
which has seemingly gained some headway, to so 
amend our State Constitution as to disfranchise the 
negroes as a race? 

"We have read in the public press repeated state- 
ments that prominent leaders are openly announcing 
their intention to "disfranchise the negro," and 
promising to "eliminate him from politics." Not 
only so, but they further promise to accomplish that 
end through a so-called educational qualification or 
understanding clause, and at the same time not to 
deprive a single white man of his ballot, no matter 
how illiterate or ignorant he may be. 

I might hesitate here and now, even at the last 



ment think they can expose their purpose to the political eye, and 
keep it concealed from the judicial eye? How long can they pro- 
claim it on the hustings, and hush it in the courthouse?" 



"Nor can escape be found in that line of decisions by the 
Supreme Court to the effect that the prohibition of the fifteenth 
amendment applies to State action and not to acts of private citizens 
(quoting 100 U. S., 339). 

"This same principle of responsibility will be applied to the 
registrars under this disfranchisement law. Their acts will be the 
acts of the State, and will consequently come within the prohibition 
of the fifteenth amendment, and will also be within the jurisdiction 
of the Federal courts, where alleged violations of the law will be 
tried.' ' 



From Supreme Court decisions, June 21, 1915 (238 U. S. p. 347 
and p. 368) : 

"It is true, it (the Oklahoma 'Grandfather' clause) contains 
no express words of an exclusion from the standard which it estab- 
lishes of any person on account of race, color, or previous condition 
of servitude prohibited by the fifteenth amendment, but the stand- 
ard itself inherently brings that result into existence since it is 
based purely upon a period of time before the enactment of the 

[82] 



SLAVERY AND THE RACE PROBLEM 

moment, to proceed further with the discussion of 
this branch of my subject if the facts as to intentions 
and methods, as I have just stated them, were at all 
in dispute. But as I understand it, there is no dis- 
position to deny them — rather, an increasing boldness 
in asserting them. Therefore we may quite properly, 
it seems to me, proceed to draw some necessary deduc- 
tions from those admitted facts as they bear on the 
law and morals of the situation. 

How, then, are these two purposes, to put out all 
the negroes and put in all the whites, to be accom- 
plished in the face of the prohibition of the fifteenth 
amendment? Clearly, it can not be done by open 
avowal in the body of the law, because in that event, 
the law would convict itself in any court in the land. 
How, then, is this avowed purpose to be accomplished ? 
Pardon me, my friends, but let us face the truth; 
the scheme must be to disfranchise the negro by a 
fraudulent administration of the law. In no other 



fifteenth amendment and makes that period the controlling and 
dominant test of the right of suffrage. 

' 'In other words we seek in vain for any ground which would 
sustain any other interpretation but that the provision, recurring to 
the conditions existing before the fifteenth amendment was adopted, 
and continuance of which the fifteenth amendment prohibited, pro- 
posed, by in substance and effect lifting those conditions over to a 
period of time after the amendment to make them the basis of right 
to suffrage conferred in direct and positive disregard of the fifteenth 
amendment. 

' 'And the same result, we are of opinion, is demonstrated by 
considering whether it is possible to discover any basis of reason 
for the standard thus fixed other than the purpose above stated." 



"The three parties (referring to the plaintiffs in the Maryland 
cases) thereupon began these separate suits to recover damages 
against the two registering officers who had refused to register them 
on the ground that they had been deprived of a right to vote 
secured by the fifteenth amendment, and that there was liability for 
damages under section 1979, Rev. Stat. * * * * 

"The cases were then tried by the court without a jury and 

[83] 



SLAVERY AND THE RACE PROBLEM 

way is it possible to produce the promised results. 
Legislative ingenuity must be backed up by adminis- 
trative fraud — else the avowed purpose cannot be 
accomplished. 

It must be admitted that the machinery of the 
proposed law could be easily perverted to fraudulent 
purposes. Before a citizen can register to vote, he is 
to be required to read and explain, or to be able to 
understand, any paragraph of the State Constitution. 
Now, we lawyers all know that there are some parts of 
our Constitution that the Supreme Court judges 
themselves have never been able fully to explain — ■ 
even granting that they understand them all. But 
who are to judge of this explanation or understand- 
ing? The registrars, of course. Suppose the most 
learned explanation could be given, who will vouch 
that the registrars themselves will understand it, or 
will accept it as satisfactory? 

Of course, the officers of registration are to be 
white. An easy paragraph for a white applicant; 
a difficult paragraph for a negro applicant; the ac- 
ceptance of any sort of an explanation from a white 
applicant : the rejection of any sort of an explanation 



to the judgments in favor of the plaintiffs which resulted, these three 
separate writs of error prosecuted. * * * * 
' 'Affirmed.' ' 



Mr. Fleming's contention was that Georgia could and would 
maintain her white supremacy, without depriving the negro of his 
rights under the Federal Constitution, and without requiring election 
or registration officers to perjure themselves in the administration of 
the State law. 

If that can he done (and who will seriously deny it?) then these 
recent decisions of the Supreme Court ought to give new hope and 
courage to all citizens who believe in law and order based on justice 
and morality. 



[84] 



SLAVERY AND THE RACE PROBLEM 

from a negro applicant — there you have the hidden 
cards with which the game of cheat is to be played. 
And it is on this miserable, bare-faced scheme of 
fraud that our proud and noble people are asked to 
rest their safety and their civilization. 

How long do the advocates of this method of dis- 
franchisement think they can expose their purpose 
to the political eye and keep it concealed from the 
judicial eye? How long can they proclaim it on the 
hustings and hush it in the court house? 

Referring to one of these laws, a learned com- 
mentator on our Supreme Court decisions has said: 
"If in the light of their history and conditions and 
the avowed purpose of the authors of the laws, their 
objects are clothed in statutes so worded that the 
real designs are not expressed in terms, the situation 
would seem to be one to require the court to reason 
from cause to effect." 

The court, in construing the fourteenth amend- 
ment (118 U. S. 356), had said: "Though the law it- 
self be fair on its face and impartial in appearance, 
yet if it be applied and administered by public au- 
thority with AN EVIL EYE AND AN UNEQUAL HAND SO as 

practically to make unjust and unequal discrimina- 
tions between persons in similar circumstances, ma- 
terial to their rights, the denial of equal justice is still 
within the prohibition of the Constitution. ' ' 

Nor can escape be found in that line of decisions 
by the Supreme Court to the effect that the prohibi- 
tion of the fifteenth amendment applies to State 

[85] 



SLAVERY AND THE RACE PROBLEM 

action and not to acts of private citizens. The 
registrars who are to enforce this disfranchisement 
law are officers and agents of the State. The Su- 
preme Court (100 U. S. 339) has further said: 
" Whoever by virtue of his public position under a 
State government, deprives another of life, liberty or 
property without due process of law, or denies or 
takes away the equal protection of the law, violates 
the inhibition of the fourteenth amendment, and as he 
acts in the name of, and for, the State and is clothed 
with her power, his act is her act." 

This same principle of responsibility will be ap- 
plied to the registrars under this disfranchisement 
law. Their acts will be the acts of the State, and 
will consequently come within the prohibition of the 
fifteenth amendment, and will also be within the juris- 
diction of the Federal courts, where alleged violations 
of the law will be tried.* 

But aside from these legal aspects of the matter, 
let us ask ourselves if there is not a more serious 
practical difficulty to be overcome. These registrars, 
as officers, must take the usual oath to perform their 
duties impartially under the law. Let us put the 
plain, blunt question : How many counties in Georgia 
can be relied on to furnish three citizens for registrars 
who will agree in advance to violate their solemn 
oaths ? Will not honest men point at them the finger 
of scorn? 



* This prediction proved true. See 238 U. S. page 368 
Myers v. Anderson. 

[86] 



SLAVERY AND THE RACE PROBLEM 

The great John C. Calhoun sought to nullify a 
Federal statute law on the tariff by State action be- 
cause he believed it to be in violation of the Federal 
Constitution, which he loved and honored. 

But these latter-day nullifiers are seeking to nul- 
lify the Federal Constitution by a State law — no, not 
by a State law itself, but by the fraudulent administra- 
tion of a State law. No power on earth could have 
made Mr. Calhoun stoop to such chicanery — he was 
fashioned in a nobler mould. What a contrast be- 
tween the great nullifier and these little nullifiers ! 

The abuses to which the broad discretionary 
powers of the registrars under these disfranchisement 
laws might be carried in times of fierce partisan poli- 
tics are absolutely unlimited. We need not flatter 
ourselves that white men will never be the victims of 
such abuses. When moral character is once defiled 
and fraud seeks its own selfish ends, it will not stop at 
the color line. 

One Danger in Educational Qualification. 
There can be no legal objection, whenever the 
public necessity requires it, to establishing a reason- 
able educational qualification for voters, provided 
that qualification is fairly and honestly applied. But 
if this educational qualification is to be used as a 
fraudulent subterfuge to disfranchise the negro, then 
there is another very serious consequence which will 
necessarily follow. 

If by appeals to race prejudice and fear these 

[87] 



SLAVERY AND THE RACE PROBLEM 

negro disfranchises establish the educational test in 
fulfilment of their promise to "eliminate the negro 
from politics," then of necessity, these same leaders 
and their followers must recognize that from their 
point of view it is not the ignorant, but the educated 
negroes who will be the most dangerous political 
enemies of the whites. 

The question will at once arise, why should the 
white people create dangerous political enemies by 
allowing the negroes to be educated? Why not 
"eliminate them from politics " by keeping them in 
ignorance? There is no escape from the logic of this 
argument if the premise be correct. Thus we would 
find ourselves committed to the degrading policy of 
enforcing ignorance on a weaker race, with its attend- 
ant results of peonage and semi-slavery, from which 
all good men would pray for deliverance. 

Division op School Funds on Race Lines. 

Even now there are signs of a movement in 
Georgia to give the negro schools only that pittance 
of money arising from the negro's taxes. A law to 
that effect has already been declared invalid by the 
State court in North Carolina (94 N. C. 709) ; also by 
the State court in Kentucky (83 Ky. 49) ; and also 
by the Federal court in three decisions from Kentucky 
(16 Fed. R. p. 297; 23 Fed. R. 634, and 72 Fed. R. 
689.) 

In our own State a bill to the same effect was 
passed in 1888 for a local school system, and Governor 

[88] 



SLAVERY AND THE RACE PROBLEM 

John B. Gordon, while Hon. Clifford Anderson was 
attorney general, vetoed it on the ground that it was 
against sound policy and a violation of the Constitu- 
tion of the State and the United States. 

There is nothing in the decision of our State 
Supreme Court in the Eatonton case (80 Ga. 755) 
nor in the Richmond County High School case (103 
Ga. 641) to sustain the proposition that the common 
school funds of the State, or of any subdivision of 
the State, can be divided between the races in propor- 
tion to the property or taxes of each. On the con- 
trary, in the latter case, our State court said: "So 
far as the record discloses, both races have the same 
facilities of attending them" (the free common 
schools). And the United States Supreme Court, 
in reviewing this Georgia case (175 U. S. 528), say it 
is an admitted principle of law that the "benefits and 
burdens of public taxation must be shared by citizens 
without discrimination against any class on account 
of their race. ' ' 

Along this same line spoke Governor Charles J. 
Jenkins, known to Georgians as the "Noblest Roman 
of Them All, ' ' when he took the chair as president of 
the Constitutional convention of 1877. He said: 

"I utter no caution against class legislation or 
discrimination against our citizens of African descent. 
I feel a perfect assurance that there is no member of 
this body who would propose such action, and if there 
were, he would soon find himself without a follow- 
ing." 

[89] 



SLAVERY AND THE RACE PROBLEM 

These are the words of a high-minded states- 
man — not of a time-serving politician. There are 
many differences between these two types of public 
men. One difference is that a politician seeks to 
find out what public opinion is and hastens to follow 
it, while a statesman seeks to find out what public 
opinion ought to be and helps to mould it. 

Our late Chancellor Hill, whose untimely death 
is so deeply deplored by us all, belonged to that higher 
class of moulders of public opinion. By example, as 
well as by precept, he led the way to the nobler ends 
of life. 

Should Georgia Follow Other States? 

Surely nothing but the direst necessity of self- 
preservation could induce any people to resort to such 
suffrage expedients as are now being proposed to the 
people of Georgia. Nothing less than an impending 
overthrow of white civilization by negro domination 
could excuse such extreme measures. But if our dis- 
cussion has shown anything, it has shown that 
Georgia is not now in danger of negro domination. 

One argument that is being pressed upon our 
people is that Georgia should follow the example of 
other Southern States that have passed similar dis- 
franchisement laws. But let us ask, why should 
Georgia follow them? Is there anything in their 
examples on this subject worthy of our imitation? 
If their necessities compelled such questionable ac- 
tion, let us sympathize with them in their extremity. 

[90] 



. SLAVERY AND THE RACE PROBLEM 

But let us not imitate them when no such necessity 
besets us. Did not Georgia first redeem herself after 
reconstruction? Has she not kept abreast of her 
sister States in material, intellectual and moral prog- 
ress ? Is she not still the Empire State of the South ? 
What State can show a cleaner official record for 
thirty years ? Rather let Georgia continue to lead in 
wise and conservative statesmanship. On all funda- 
mental questions our white people are sufficiently 
united in thought and purpose to come together in 
a solid phalanx if the negroes should ever return to 
the ballot box in sufficient numbers on one side of an 
issue to jeopardize the public safety. 

As a legal means of maintaining white suprem- 
acy, no plan yet devised approaches in effectiveness 
our party primary system, in combination with the 
cumulative poll tax provision of the Constitution. 

Whatever may be the final political status of the 
negro, we are now undeniably in a transition stage of 
evolution. It is scarcely conceivable that the condi- 
tions created by the disfranchisement laws of some 
Southern States can be permanent. The battle for 
supremacy between those laws and the Federal Con- 
stitution remains to be fought out. If the Federal 
Constitution proves victorious, as it is very apt to do, 
then the entire electoral system of these States may 
have to be changed. 

On the other hand, Georgia, through her superior 
statesmanship, has put herself in a position of safety, 
ready to take advantage of whatever hopeful devel- 

[91] 



SLAVERY AND THE RACE PROBLEM 

opments the future may unfold. She has violated 
no Federal law. She has maintained white suprem- 
acy with the least possible friction, and can continue 
to so maintain it. 

Not only is this campaign against the negro 
unnecessary and unjust, but it is most inopportune 
at this juncture. When every County in the State is 
calling loudly for more labor to serve the household 
and till the fields and develop our resources, why 
should we seek to enact more oppressive laws against 
the labor we now have? 

We do not know what shifting phases this vexing 
race problem may assume, but we may rest in the 
conviction that its ultimate solution must be reached 
by proceeding along the lines of honesty and justice- 
Let us not in cowardice or in want of faith, needlessly 
sacrifice our higher ideals of private and public life. 
Race differences may necessitate social distinctions. 
But race differences can not repeal the moral law. 

The Moral Law — Its Origin and Sanction. 

What is this thing we call the moral law ? Is it a 
mere weak sentiment, suitable only for children and 
preachers and Sunday school teachers? Or is it the 
fiat of Nature and Nature's God, commanding obedi- 
ence from all men under the sanction of inevitable 
penalties? We will waive all questions as to weight 
of authority, and reason out the matter for ourselves. 

Whence come our morals or ethical conceptions? 
Briefly let us summarize: 

[92] 



- SLAVERY AND THE RACE PROBLEM 

First : The theological school rests the founda- 
tion of morals on divine commandment or revelation, 
which quickens the conscience. 

God spake through Moses, the Prophets and the 
Christ. 

Second: The psychological school traces the 
source of morals to an instinct or sense that is innate 
in the mind itself — the conscience. 

The philosopher and metaphysician, Immanuel 
Kant, reasoned back to his celebrated postulate of a 
"categorical imperative" call to duty. 

Third: The utilitarian school evolves morals 
from human experience, sanctioning as "good" or 
"right" that conduct which has proven beneficial, 
and condemning as "bad" or "wrong" that conduct 
which has proven injurious, thus creating and devel- 
oping the conscience by successive stages of experi- 
mental knowledge. 

Herbert Spencer thus evolved his system of 
utilitarian ethics till it almost flowered out in the 
beauty of the "Golden Rule." 

Professor Huxley, discussing the scientific doc- 
trine of causation, says : ' ' The safety of morality lies 
in a real and living belief in that fixed order of nature 
which sends social disorganization upon the track of 
immorality as surely as it sends physical disease 
after physical trespassers." 

It is not necessary for us to determine how much 
of truth there is in each of these schools of thought. 
Enough for us to know that all three reach substan- 

[93] 



SLAVERY AND THE RACE PROBLEM 

tially the same conclusion as to right rules of conduct 
for men. By different routes they arrive at the same 
goal. In reasoning they are three ; in acting they are 
one. Here is a subject on which religion and science 
are in full accord, namely, that the moral law is the 
wisest rule of human conduct. 

So much for the individual man. 

The Moral Law Applies to States as Well as 
to Individuals. 

Now, does the same moral law apply to States 
and Nations as well as to individuals? Or are there 
two codes of morality, one for individuals and another 
for aggregations of individuals? Can we practice 
fraud as a collective body of citizens and still preserve 
our personal integrity as individual citizens? 

We might quote Mr. Jefferson as an authority 
for the doctrine that "moral duties are as obligatory 
on nations as on individuals." But again let us 
waive authority and reason out our own conclusions. 
We will test the question by the standards of the three 
schools of thought first named. 

If we assume that the theological school is correct, 
it is manifest that there can not be a code of public 
morals different in principle from the code of private 
morals. God must deal with individuals and nations 
alike, because the former are the responsible units of 
the latter. 

If we assume that the psychological school is cor- 
rect, it is equally manifest that* the conscience, being 

[94] 



' SLAVERY AND THE RACE PROBLEM 

an innate mental quality, cannot reverse its action 
by changing from private to public capacity, from in- 
dividual to collective functions. 

If we assume that the utilitarian school is cor- 
rect, it ought to be equally as clear that the rule of 
conduct which experience has proven to be beneficial 
as between individuals, is also beneficial as between 
States under like conditions. 

It is true that aggregations of individuals, by 
reason of divided responsibility, do not usually act up 
to the code of morals recognized by single individuals. 
That historical fact shows the imperfection of our 
past civilization, and calls upon us for better worR 
in the future. No one accepts the condition as per- 
manent or satisfactory. The great task of civiliza- 
tion, the dearest hope of philosophers and noble- 
minded statesmen, is to constantly improve that 
condition and bring nations more under the sway of 
the moral law. Though perfection be unattainable, 
every step is progress. 

In proportion as international intercourse be- 
comes more free will a code of international ethics, 
based on a code of personal ethics, be developed, to 
the immeasurable advantage of all concerned. Such 
is the doctrine underlying The Hague tribunal, which 
has already done so much for the peace of the world. 

One of the noblest tributes ever paid to Gladstone 
was that he had applied the moral law to British poli- 
tics. 

It was Aristides, surnamed the Just — a brave 

[95] 



SLAVERY AND THE RACE PROBLEM 

soldier, a successful general, a man of sound practical 
judgment, not a mere dreamer — who, when named by 
the Athenians to consider a secret plan, suggested by 
Themistodes, to gain naval supremacy for Athens by 
burning the ships of her allies, reported against the 
unscrupulous scheme and said: "What Themistodes 
proposes might be to your present advantage, but 
Athenians, it is not just. ' ' 

Speaking of the ideal, universal, moral code, one 
of the least sentimental of modern scientific writers 
says : l ' Although its realization may lie in the unseen 
future, civilization must hold fast to it, if it would 
be any more than a blind natural process; and it is 
certainly the noblest function of social science to 
point out the wearisome way along which mankind, 
dripping with blood, yet pants for the distant goal." 

Another deep thinker, summing up the facts of 
history and the reasonings of philosophers, says: 
"That the moral law is the unchanging law of social 
progress in human society is the lesson which ap- 
pears to be written over all things." 

Solution op Race Problem : Give Negro Justice. 
The foundation of the moral law is justice. Let 
us solve the negro problem by giving the negro jus- 
tice and applying to him the recognized principles 
of the moral law. 

This does not require social equality. It does 
not require that we should surrender into his inex- 
perienced and incompetent hands the reins of politi- 
cs ] 



SLAVERY AND THE RACE PROBLEM 

cal government. But it does require that we recog- 
nize his fundamental rights as a man, and that we 
judge each individual according to his own qualifica- 
tions, and not according to the lower average char- 
acteristics of his race. Political rights can not justly 
be withheld from those American citizens of an in- 
ferior or backward race who raise themselves up to 
the standard of citizenship which the superior race 
applies to its own members. 

It is true that the right of suffrage is not one of 
those inalienable rights of man, like life, JLiberty and 
the pursuit of happiness, as enumerated in the Decla- 
ration of Independence, but the right of exemption 
from discrimination in the exercise of suffrage on 
account of race, is one of the guaranteed constitu- 
tional rights of all American citizens. 

We of the South are an integral part of this 
great country. We should stand ready to make every 
sacrifice demanded by honor and permitted by wis- 
dom to remove the last vestige of an excuse for the 
perpetuation of that spirit of sectionalism which ex- 
cludes us from the full participation in govern- 
mental honors to which our brain and character en- 
title us. 

Let us respect the National laws to the limit of 
endurance, and if that limit should be passed, let us 
resort to some means of redress more typical of 
Southern manhood than fraudulent subterfuge. The 
future material prosperity of the South is already 
assured. Let us resolve that there shall remain in- 

[97] 



SLAVERY AND THE RACE PROBLEM 

grained in the moral fibre of our New South the high 
character of our Old South — which can best be de- 
scribed in the memorable words of Edmund Burke as 
"that sensibility of principle, that chastity of honor 
which felt a stain like a wound. " 

We cannot afford to sacrifice our ideas of justice, 
of law and of religion for the purpose of preventing 
the negro from elevating himself. If we wish to pre- 
serve the wide gap between our race and his in the 
onward progress of civilization, let us do it by lifting 
ourselves up, not by holding him down. 

If, as some predict, the negro in the distant 
future must fail and fall by the wayside in the strenu- 
ous march of the nations, let him fall by his own in- 
feriority, and not by our tyranny. Give him a fair 
chance to work out what is in him. 

Carl McKinley, that brilliant and noble-hearted 
author of "An Appeal to Pharaoh," who advocated 
so earnestly and so eloquently the impracticable pol- 
icy of deportation, declared himself on this subject as 
follows : 

"We should have learned by this time moreover, 
that we cannot treat the negro with injustice, however 
disguised, without sharing the consequences with him. 
* * * It would be a foul wrong to beat him back 
in his upward struggle, and consign him to a lower 
plane and establish him on it. ' ' 

If the negro as a race is to be disfranchised re- 
gardless of the personal qualifications of meritorious 
individual members of that race, consider for a mo- 

[98] 



SLAVERY AND THE RACE PROBLEM 

merit some of the changes we must make in many of 
the fundamental doctrines lying at the base of our 
government. The revised version of our political 
Bible would have to read something like this: "No 
taxation without representation — except as to ne- 
groes;" "equal rights to all — except as to negroes;" 
' ' all men are created equal — except as to negroes. ' ' 

No Recantation of Jefferson's Doctrine. 

Some modern critics seriously suggest that we 
should amend that paragraph of the Declaration of 
Independence which asserts the equal rights of men, 
so as to adjust it more accurately to historical and 
scientific facts. But that epoch-making document 
needs no alteration upon the subject of human rights 
when interpreted as it was intended to be interpreted 
by the man who drafted it. Mark you, Mr. Jefferson 
did not write "All men are born free," as the quota- 
tion is sometimes given. That looser language is 
found in the Constitution of Massachusetts, not in the 
Declaration of Independence. Such an assertion 
would have been disproved by the historical fact of 
slavery then existing. What Mr. Jefferson wrote* 
was: "All men are created equal." That is to say, 
not equal in exterior circumstances, nor in physical 
or mental attributes, but equal in the sight of God 
and just human law, in their inalienable rights to 
life, liberty and the pursuit of happiness. Americans 
want no recantation of that declaration. It is the 
political corollary of the Christian doctrine of the 

[99] 



SLAVERY AND THE RACE PROBLEM 

justice and the Fatherhood of God. Let it stand as 
it was penned by Jefferson, an ennobling, even though 
unattainable, ideal, demanded by the spiritual nature 
of man — one of those ideals that have done more to 
lift up humanity and to build up civilization than all 
the gold from all the mines of all the world. 






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